12 Ga. 469 | Ga. | 1853
By the Court.
delivering the opinion.
The point in the case is this: was the plaintiff entitled to recover upon the possession of his intestate, as proven against the defendant, who entered without color of claim or title as an intruder ? The presiding Judge instructed the Jury that he could not. It is not questioned, but that the plaintiff in ejéetmení must rely upon the strength of his ^ own title, and not upon the want of title in liis adversary. And it is well settled, too, that a plaintiff in ejectment miay recover ujipn a prior possession, against a possession acquired by mete" entry. 5 Geo. R. 39. In this case it is not pretended that fhe defendant; ’Hawkins Nunn, went into possession under claim of title whatever. The point made by the defendant in error,' is that Janes, although he went into possession under his deeil from Warren, abandoned that possession voluntarily, and having so abandoned it, his representative cannot recover upon the strength of his prior pos
Direct authority upon this question, I find to be very scarce— it must be decided therefore mainly upon principle. Possession is one, although the lowest grade of title. It is prima facie evidence of a legal title, until some act is done by the rightful owner to divest this possession, and assert his title. Hence it is, that as against one who can show no better title than naked possession, a plaintiff who has had prior possession, may recover upon that possession. Being prior in time and equal in degree with that of the defendant, it prevails against it. Upon what then, does the idea go, that this possession, when abandoned, cannot prevail against the possession of another subsequently acquired? I supposed must be founded upon the rudimental propositions that before society was fully organized, property was evidenced by appropriation, and that when the possessor chose to abandon the possession, it became, as Blaclcstone says, “naturally speaking, publici juris again,” and liable to be appropriated by the next occupant. But even when this primal law of property prevailed, both the possession and the intention to possess, must have ceased before the right of the first occupant was divested ; for if one was possessed of a jewel, and lost it, or dropped it by accident, and another found it, the loser was
That there is some evidence in this case, that Jones had the animus revertendi, cannot be questioned. He went into possession as purchaser from Warren, and Bassey went in under him, by virtue of a contract of purchase. What that contract was, does not appear. It may not have been complied with — probably was not, and the contract was abandoned. 'Whilst Bassey was in, at all events, the witness says he held possession under Jones. When he left, the house and lot was vacant, but up to that time, Jones had not made any abandonment. The vacancy occurred between Rassey’s removal and Edmond Nunn’s entering. How Edmond Nunn got in, does not appear; but he himself admits that he had no title, and said that he would give up the possession if Jones would not charge him rent. This is some proof that Jones had not quit the possession with a purpose never to return; but on the contrary is, to some extent, demonstrative that he was still asserting a claim, and therefore purposing to regain possession.
So that question must go to the Jury.