105 Ga. 805 | Ga. | 1898
Assuming the burden of proof, the plaintiffs established by competent evidence their claim as remaindermen under the will of Stephen Bivens, who died in possession of the land in dispute. This was sufficient to make out a prima facie case in their favor. Wolfe v. Baxter, 86 Ga. 705. It was further shown that their father, John T. Bivens, took under the will as life-tenant, and in 1866 or 1867 went into possession of the tract in dispute, presumably in that capacity, though at the date of his death, which occurred in May, 1897, he was not seized thereof. The present action of ejectment was commenced August 24 of the same year. The defendants introduced in evidence a deed from Stephen B. and James W. Stubbs to William M. Roberts, dated October 24, 1878, purporting to convey to the latter a fee-simple title to the-premises in controversy, which were described therein as a tract containing a designated number of acres “known as the-Stephen Bivens land.” This deed also contained the follow
Nor can» it be said that the defendants in any other manner met the prima facie case made out by the plaintiffs. So far as was shown, John T. Bivens had no interest whatever in the land in controversy save that which he acquired under the will from Stephen Bivens, which was a mere life-estate. No greater interest could, therefore, pass into the “Stubbs boys,” to whom John T. Bivens sold, or be conveyed by them to Roberts, so as to descend to his heirs. In other words, the defendants appear to stand in the shoes of the life-tenant, claiming adversely to the plaintiffs under a common grantor. If so, the
We accordingly hold that the trial judge properly directed a verdict in favor of the plaintiffs, which holding necessarily also disposes of the defendants’ contention that the court, aside from the error committed in giving this direction to the case, erroneously overruled their motion that the jury be instructed to return a finding in their favor, upon the ground that no title had been shown in the plaintiffs upon which they could recover.
Judgment affirmed.