133 Ga. 49 | Ga. | 1909
The defendant's in error brought a statutory complaint for land to recover land lot'‘No. 738 in the 1st district and 4th section of Haralson county, and the mesne profits thereof. A verdict was rendered, making, among other findings, one for the plaintiffs for four fifths of the premises in dispute; and the defendant), who is the plaintiff in error in this .court, filed exceptions to the overruling of his motion for a new trial. The plaintiffs were the children of Mrs. Nancy - Owens, deceased, and claimed title to the land by reason of being the sole heirs at law of Mrs. Owens at the time of her death, except her husband, under whom the defendant claimed. The plaintiffs claimed that their mother acquired a good prescriptive title to the land, by reason of seven years adverse possession under color of title. The evidence upon the trial of the case showed, among other facts, the following: A deed to Nancy Owens to the land lot sued for, dated October 2, 1882, and recorded January 27, 1883. Nancy Owens, the mother of the four plaintiffs, died March 1, 1894, intestate. Her heirs at law were the plaintiffs and her' husband, W. T. Owens, who died in 1895. Hpon the husband’s death an administrator was appointed upon his estate, and this administrator sold the land on March 1, 1897, and conveyed it by deed to Biggers. On the same day Biggers conveyed the land by deed to Jesse Beall, who conveyed it by deed to I. M. Estes on the 3d of September, 1897. Estes conveyed the land by deed to W. C. Walker, November 2, 1900. Walker conveyed the land by deed to the defendant, February 22, 1905. Each of these deeds was recorded soon after the date of its execution.
The plaintiff in error also complains that the court committed error in charging the jury as follows: “You ikould determine what the mesne profits of the lands are for the last five years, since the filing of this suit, which was in July, 1906. You are authorized to go back four years prior to the filing of the suit, and to consider also the time since the filing of the suit. You determine what the mesne profits are, under the rules I have given you. Go back four years before the institution of this suit, and find what the yearly value of it is for rent up to the present time; then you go further and find what the value of the improvements are. You simply make these findings, and the court will determine the respective rights of the parties after you have returned your findings into court. You don’t undertake to settle these matters between the parties; you simply find the facts, and the court will determine what will be done in the premises.” One complaint is that the last sentence in this charge was error. No reason is assigned why it is error. The court in its charge required the jury, if they found for the plaintiffs, to make a separate finding on every issue involved in the case. After this finding by the jury was made, the court could, in its decree, have the same enforced. The jury found four fifths of the mesne profits to be $260, and found four fifths of the value of the improvements to be $152.29. We see no error requiring a new trial in the last sentence of the charge complained of. We think it would have been better, however, for the court not to have used the expression, “You don’t undertake to settle these matters between the parties; you simply find the facts, and the court will determine what will be done in the premises,” as the findings of the jury on the matters referred to would, in one sense, “settle”
Another complaint of this charge is, “because the court therein charged the jury that they could find mesne profits against the defendant for four years prior to the filing of the suit, and prior to the time he went into possession of said land; in other words it was an instruction by the court to the jury that they could find mesne profits against the defendant for four years prior to the bringing of the suit, whether he received the rents and profits from said place during this four years of time or not/’ The defendant in his plea only claimed a set-ofl; for the value of improvements on the land made since he had been in possession thereof, and set forth an itemized statement of such improvements and their value. The testimony shows that he went into possession of the land in 1903, less than four years before the filing of the suit, which was filed June 26, 1906. As the defendant in his plea did not ask for a set-off, or for a judgment, for the value of any improvements placed on the land, except such as he himself placed on the land since he went into possession thereof, he was not entitled to prove or recover the value of improvements placed thereon by his predecessors in title, and we do not think the plaintiffs had the right to any rents of the land prior to the time the defendant went into possession and was entitled to receive the profits of the land. See Mills v. Geer, 111 Ga. 275 (36 S. E. 673, 52 L. R. A. 934), and authorities cited' in the opinion. We therefore think that the charge above quoted was subject to the complaint made, and that the instruction authorizing the jury to find for the plaintiffs mesne profits prior to the time the defendant went into possession in February, 1903, was erroneous and requires a new trial.
Judgment reversed.