176 Ga. 407 | Ga. | 1933
This is a case in which the defendant moved for a nonsuit, and the court, after hearing argument on the proposition, instead of sustaining the motion, directed the jury to find a verdict in favor of the defendant. This was directing a verdict of the judge’s own motion. The correctness of the court’s judgment is challenged'by a direct bill of exceptions. It is true, as pointed out by counsel, that there appear in the record a number of instances where the testimony in behalf of the parties is in direct conflict; and had there not been other controlling facts in the record as to which there was no issue to be submitted, and which nevertheless
The action is a statutory complaint for about five acres of land designated by a survey and plat, which was formerly owned by Blalock, the father of the plaintiif. The plaintiff’s father lived on the tract until sometime in 1898, when he moved to a place a few miles away, but put in possession his grandson as his agent, who remained on the property from that time until two or three years after the death of the elder Blalock; and according to the plaintiff’s testimony, “my sister lived out in this neighborhood . . after Jesse [the grandson] left and went back; she seen over the place after he went back to where my father died; she lived right there next door, and I saw her in possession of that land.” The plaintiff’s father died in 1901; and it is contended that, as there was no administration of his estate, the statute would be tolled one year and would not begin to run against the plaintiff until 1906; and that, as the plaintiff began this action in 1925, no prescription against him could have accrued. We think the plaintiff has misconstrued the defense. The defendant did not rely upon prescription by possession for twenty years, but sought to prescribe by showing seven years adverse possession of the premises under written evidence of title. Let it be conceded that the plaintiff’s father bought the land in 1866, and that he got perfect title, and that he was in possession of the land for forty years. The fact that he had original title followed by forty years possession would not have entitled the plaintiff to .recover, if he had not been, in possession for nineteen years, and in the meantime another had come into possession of the land bona fide and under written evidence of title and had remained in possession more than seven years. The plaintiff must recover upon the strength of his own title; not upon the weakness of the title of his adversary. The fact that one who had once been in possession of laird» sued to recover that possession within • nineteen years might entitle him to recover against a defendant in possession who had no written evidence of title and .who relied alone upon prescription arising from, adverse possession for a period of twenty years. But .that a prescriptive possession of this character is inferior to seven years possession under written evidence, of title has been held by this court more than once. “This action is not predicated .upon the
We are cited the case of Paxson v. Bailey, 17 Ga. 600, in which it was ruled that “adverse possession is usually a mixed question of law and fact — whether the facts exist which constitute adverse possession is for the jury to judge.” As we have pointed out in this case, the evidence as to the defendant’s possession for more than seven years prior to the institution of this action was uncontradicted. Judgment affirmed.