126 Ga. 480 | Ga. | 1906
(After stating the foregoing facts.)
The rule of the common law, that where both parties in ejectment derive title from a common source, the plaintiff is not required to show title in such person, has been often recognized by this court as being applicable to an action for the recovery of land brought under the common-law form as well as such an action brought under the code. See cases cited in 4 Michie’s Enc. Dig. 77. If the plaintiff claims as a remainderman under a deed creating a life-estate in one person and a remainder to him, and the defendant claims under a conveyance from the life-tenant, the parties derive whatever title they have from a common grantor, that is the grantor in the deed creating the life-estate and the remainder. Brundage v. Bivens, 105 Ga. 805. If it appears either from the plaintiff’s petition or from the defendant’s answer - that each party claims under a common source, this of course is' sufficient to make the rule applicable to the case. It is contended that the rule has no appli
We think the court properly granted a new trial. On another trial the defendant may introduce evidence of any title that she has-acquired to the premises -either through S. J. Bell or otherwise. If the land originally belonged to Simeon Bell, the exclusive possession by S. J. Bell for seven years without the payment of rent would create the presumption of a gift, and convey title to him,, unless there was evidence of a loan, or a claim of dominion acknowledged by S. J. Bell, or a disclaimer of title by him. Civil Code,, § 3571. If such exclusive possession had been completed before the execution of the deed of 1867, Simeon Bell would have been at. that time without title to the property. The evidence in the present ease was not sufficient to show title in Simeon Bell, or to raise a presumption of a gift from him. But all these facts may be inquired into on another trial. The extent of our ruling now "is-simply that the deed from S. J. Bell to Bothwell, coming from the custody of the defendant, was sufficient to make out a prima facie case in the plaintiffs, and to put the defendant on proof of her title.
Judgment affirmed.