136 Ga. 541 | Ga. | 1911
1. “In order to acquire a prescriptive title by virtue of, possession alone for twenty years, such possession must be actual, and the prescription will not extend beyond the possessio pedis. If one seeks to prescribe by virtue of actual possession alone, without color of title, he should show the extent of such possession.” Tillman v. Bomar, 134 Ga. 660 (5), 661 (68 S. E. 504).
(a) Tested by the rule of law above quoted, the evidence was insufficient to authorize the jury to find that the defendants in error, by actual adverse possession for 20 years in good faith, acquired a good prescriptive title to that portion of the land in dispute on which there was growing timber; and it was erroneous for the court to give to the jury the charges of which complaint is made, authorizing the jury to so find.
2. It was error to charge: “The law on this subject is that when it
'(a) A grant of land from the true owner to another not his child can not be presumed, where such other person has not been in aetual adverse possession of the land under a claim of right in good faith for 20 years; and the evidence did not authorize a charge on the subject of the presumption of a grant of the land in dispute, on which there was growing timber.
3. The plaintiff in error held a deed from the heirs at law of.Nancy Smith to a tract of land including the land in dispute, and introduced evidence' tending to show that he had in good faith for 7 years been in actual adverse possession of a part of the tract of land conveyed by this deed; and it was error to exclude evidence that Nancy Smith sold and cut timber from the land, and that he, after the deed to him was executed and delivered and while he was in aetual adverse possession of a part of the tract, cut timber on said land. The fact that those portions of the tract from which 'timber was thus sold and cut constituted'no part of the land in dispute between the plaintiff and the defendant would not render the testimony inadmissible.
4. Except as pointed out in the preceding notes, there was no error requiring a new trial. Judgment reversed.