96 Ga. 703 | Ga. | 1895
The questions made in the present case arose upon the following facts: The plaintiff' brought an action of ejectment, in the statutory form, against the defendant for twenty-six and seventy-six one hundredths acres of land in lot 334 in the 13th district of Bibb county, alleged to have been bounded On the north by lands of the estate of Asher Ayers, west by lands of F. S. Jones and Nancy Carstarphen, south by lands of Asher Ayers’ estate known as Harris place, and on the east by lands of the American Investment Company, being part of fifty acres of land lying in the northeast corner of said lot 334, being a rectangle in shape, the north and .south lines of which are 550, and the east and west lines are 2,130 feet, and being the same lands recently in litigation between the American Investment and Loan Company and Nancy and T. J. Carstarphen. It appeared from the abstract of title, that the plaintiff •claimed under a warranty deed from William A. Johnson to Robert S. Holt, dated December 31st, 1852, and it was admitted upon the trial of the case that the plaintiff, as an heir at law of Robert S. Holt, received the land, by proper paper title, upon the distribution of the
1, 2. We do not think the court erred in admitting in evidence in favor of the plaintiff' the declaration and verdict above recited. Had the latter been offered or relied upon as evidence of a final adjudication of the matters and things set up in the declaration and as operating as an estoppel, or had it not been legally competent for any other purpose, the objection would have beeu well taken. It is well settled law, that in order to serve as an estoppel by res cidjudicata, there must have been a final judgment pronounced by the court on the matter in controversy. Verdicts and other findings not followed by the solemn judgment of the court cannot operate as an estoppel upon parties with respect to the matters called in question. Bigelow on Estoppel, p. 51. This verdict and declaration, however, were relevant upon the special matter at issue in this case. The question which became finally involved was more a question of boundary than of title; and while the verdict itself would not conclude the defendant in that case,
3, 4. The deed under which the defendant claimed title to the premises in dispute embraced by separate and independent description three several parcels of land lying contiguous the one to the other, but not embraced by metes and boundaries within one general description which would cover them all. S.he claimed actual possession, however, of a portion of one of these parcels of laud, and by virtue of such possession sought by prescription to extend her possession constructively over the remainder of such parcel, including within such constructive possession the premises sued for in this case. Her deeds were not recorded in time, nor within such time as that,' computing her possession from the date of the record of such deeds, would have acquired a title by prescription. If, however, the deed were otherwise sufficient as the basis of a prescription, her
5, 6. Hnder the facts as they come to this court certified in the record, it is doubtful whether the question of prescription under color of title is involved at all. The plaintiff claims fifty acres of land in the northeast corner of lot 334. The defendant claims under a conveyance of originally eighty-two and one half acres in the northwest corner of that lot. Neither of these conveyances purport of themselves to establish the bouudaiy between the two subdivisions of the original land lot claimed by the respective parties. The question made in the case then becomes one of boundary. If the original boundary established by the grantor is where the plaintiff claims that it was, the principle of prescription might become important in the establishment of his title to the disputed premises, if the evidence on the question of boundary were determined in his favor; but considering the deeds of the plaintiff and defendant, as
7. In determining the question as to what was the true original boundary between these respective tracts of land, it occurs to us that the controlling inquiry must be as to the exact point of its location, either by the
8. "We cannot say how far the judgment of the jury may have been influenced to the finding complained of in this case, by the error of the court in allowing them to treat the verdict admitted in evidence as establishing a boundary between the parties then at issue; but the charge of the court upon the subject of prescription, which excluded altogether from the consideration of the jury the defendant’s claim of prescription under color of title, because her deed was. not recorded, was necessarily harmful to her contention. The evidence is closely conflicting upon the questions of fact involved in the case; the parties and witnesses seem to be at issue upon all of them; and we think a retrial of the case is necessary to a proper settlement of this controversy.
Let the judgment of the court below be Reversed.