98 Ga. 582 | Ga. | 1896
This was an action of ejectment against Burbage in tbe fictitious form, tbe real plaintiff in which, was Mrs. Flanders. As originally brought, a demise was laid from Fitzgerald, and another from the heirs at law of one Gatchell, among whom was Mrs. Flanders. After the action had been pending in court for a number of years, by .way of amendment a new demise was laid in the name of the latter alone. There was no evidence authorizing a recovery upon tbe demise from Fitzgerald. There was evidence showing possession in Gatchell, and also, that he conveyed whatever title he had in the premises to Mrs. Flanders. The defendant relied upon a prescription of ■seven years under written evidence of title. There was a verdict against him, and he complains of the overruling of his motion for a new trial. Ve find it necessary to order
1. If, instead of laying a new demise in her own name, Mrs. Flanders had amended the declaration by striking-therefrom the names of all the original lessors of Doe, the the plaintiff, except her own, — which she had an undoubted right to do, — the case would have stood as if it had been brought in the first instance upon this demise alone; but the same thing was not accomplished by introducing a new and separate demise from herself, for the reason that this course left her free to recover either upon the joint demise
2. Had she pursued the course above indicated, the amendment would have related back to the commencement of the action, She was undoubtedly a plaintiff at the time the declaration was filed; and if she had simply stricken from the declaration the names of her colessors, no reason occurs to us why the declaration should not then have been treated as though she was the sole plaintiff from the-beginning, or why the declaration would not then have stood, as to all matters of defense, as if it had been originally brought upon the demise of Mrs. Flanders alone. The new demise, however, introduced by way of amendment, stands upon an entirely different footing. As to it, the action should be treated as though it had not been commenced until the date upon which this amendment was filed; and, relatively to the right of action set up in the amendment, the statute of prescription, as above remarked, ran in favor of the defendant until that date. Jones v. Johnson, Kimball & Co., 81 Ga. 293; and there are previous decisions of this court to the same effect.
3. It is evident from what has already been said, that Mrs. Flanders could not recover upon.the joint demise from herself and the other heirs of Gatchell; because, even assuming that he originally had title, it appeared that he had conveyed it to Mrs. Flanders. Treating the action, so far as it related to the new demise, as having been commenced when the amendment was filed, there was evidence tending to show that Burbage had acquired a good title by prescription before this new demise was introduced into the action. We do not mean to say this defense was established; but simply that, as it cannot be known but that the jury found for the plaintiff upon the joint demise, there must be another trial, which should be conducted in the light of what is here written.
4. This court has decided in several cases — among them
5. It requires no comment to show that the charge referred to in the fifth head-note was erroneous. It must have been the result of mere inadvertence.
Judgment reversed.