85 Ga. 703 | Ga. | 1890
Robert ITarkness took possession of the premises in dispute in 1826 or 1827, and died so possessed in May, 1829, leaving a widow and several children his heirs at law. His widow afterwards intermarried with James Hardin. There is some evidence in the record that Iiarkness died testate, and that his will was admitted to probate. According to this evidence, he devised the premises to his widow for life, with remainder to his “bodily heirs.” In April, 1849, all the heirs of Harkness, including his widow who was then Mrs. Hardin, in adjusting some litigation which appears to have arisen amoDgst them, entered into a written agreement signed and sealed, by which the premises were settled upon Mrs. Hardin for and during her life, with remainder equally to her children by James Hardin. At that
The sole question now for our determination is
Inasmuch as the possession of Ilarkness continued till his death, no intention can he imputed to him to renounce or abandon it. If the evidence be treated as sufficient to establish his testacy, it shows that he devised the land, and thus the title would pass to the plaintiffs through his will, and the settlement made in 1849 by the devisees. If he died intestate, then the title descended to these same persons as heirs at law, and they were equally competent to pas’s it by the settlement into the plaintiffs. So in either event, the plaintiffs acquired such title as was in Robert Ilarkness, save that a life estate was carved out of the same for their mother. It is manifest, therefore, that their title in remainder is one upon which they can recover, as against a subsequent possession to that of Ilarkness, originating by mere entry and without legal right. Under the evidence in the record it does not appear that Brooks could have entered rightfully as against the Ilarkness title. And if he could not do so, he could confer no right so to do upon others. A title derived from him, except as aided by prescription, would be no better at the end of the chain than at the beginning; and Kennedy, not being in a position to avail himself of prescription as against the plaintiffs, is relatively to them, a wrong-doer. Having no title which affects theirs, he has usurped their estate and -right of possession, and is no better off than if his entry had not taken place until after the death of their mother, and had then been accomplished by an open trespass.
It results from the foregoing exposition of the law applicable to the case that the verdict was wrong, and that the court erred in not granting anew trial.
Judgment reversed.