Brown v. Colson

41 Ga. 42 | Ga. | 1870

*By the Court—

BROWN, C. J.,

delivering the opinion.

The evidence in this case shows that Dennis Colson died in 1839 in possession of the premises in dispute, which were assigned to his widow as dower in 1840, who went into possession. The heirs-at-law of Dennis Colson, after the death of the widow, found Brown in possession, holding under' Williams & Baldwin, and they brought ejectment for the recovery of the premises; plaintiff’s proved the above facts, and introduced a copy of the record, in the case from Baker county, showing the assignment of dower in the premises to the widow, and closed. The defendant introduced no evidence. The jury found for the plaintiffs the premises in dispute, with $70 00 per year, for ten years, as mesne profits. A new trial was asked for and refused by the Court below, and this is the error assigned.

We think the plaintiffs made such a prima facie, case as put the defendant upon the production of title. If the defendant. shows no title, the heir-at-law may recover in ejectment, upon proof that his ancestor died seized and possessed of the premises in dispute: Adams on Ejectment, 282; 1 Sanders on Pleadings and Evidence, 1004. .And in case as the premises are assigned to the widow as dower,.by the judgment of the proper Court, and she takes possession under such judgment, the heirs may recover after her death, by proof of the ■ seizure and possession of their father, and the subsequent possession of the, widow. When the dower is assigned the right of the heirs-at-law to the possession of the lands included in the dower, is postponed till the death of the widow. And as she may make such disposition as she pleases of her dower, the fact that she may have sold it, and put another person in possession, cannot affect the right of the heirs-at-law at her death. Nor does the fact that all the forms of law were not complied with in the assignment of dower make any difference, if the widow went into possession under the judgment of the Court. •

It is objected to this judgment that there is no evidence to support the finding for mesne profits, and a new trial was *asked on the ground, among others, that the verdict was contrary to evidence, without evidence, and decidedly against the weight of evidence.

After a careful examination of the record, we find no evidence to sustain .any finding for mesne profits, and we therefore reverse the judgment of the Court below, unless the plaintiffs will write off the amount found for mesne profits. If they do this, the judgment will stand affirmed for the premises in dispute.