111 Ga. 396 | Ga. | 1900
This was a complaint for land, brought in the superior court of Campbell county by J. W. Warlick against Mrs. M. B. Cochran, the land being a town lot in Fairburn, designated as No. 31 in block A. The abstract of titles attached to the petition was: 1st. Deed from Richard Moore, Alfred Austell, and Nathan Camp to Atlanta & LaGrange R. R. Co., now the Atlanta & West Point R. R. Co., dated November 5, 1850, conveying lots of land Nos. 66, 52, 47, 53, and the east half of 51, all in the 9th district of originally Fayette, but now Campbell county, Ga. 2d. Deed from Atlanta & West Point R. R. Co., formerly the Atlanta & LaGrange R. R. Co., to James C. Warlick, dated December 21, 1896, conveying lot of land No. 11 in block A in the town of Fairburn, said lot being part of lot No. 52 in the 9th district of originally Fayette, but now Campbell county. There is no proof in the record that the grantors of the Atlanta & LaGrange R. R. Co. ever had any title or possession of the land conveyed. Plaintiff, therefore, amended his petition, claiming that his predecessors in title paid for the laud and held uninterrupted and peaceable possession of it, including the premises in dispute, under color of-title for more than seven years. The defendant answered denying such possession and title in the plaintiff, alleging that if
The plaintiff below introduced the deeds an abstract of which was attached to his petition. It is clearly inferable from the evidence in the record that in 1850 the railroad company purchased several large tracts of land, including lot known as No. 52, and directly thereafter constructed its road which ran through lot No. 52, and upon that lot erected its depot buildings, and had been in possession and use of this property, that is, the track and the depot buildings, from that time to the present. There is no evidence that it was ever in actual possession of the lot in dispute. It is inferable from the testimony that this was not then a town, but.simply open land, when the railroad bought, and that after the construction of its track and the location of its depot, the town of Fairburn by degrees grew up, and was built mainly upon this lot No. 52. Plaintiff’s witnesses admitted that there had been for years a number of houses built on this lot, occupied as residences and business houses by private citizens, and some of them were located on lot No. 52 between the railroad depot and lot No. 11 in controversy. How the owners of these improved lots acquired possession of the same does not appear from the record, but the probability is that the railroad, after buying the lots, sold them off to individuals to occupy and improve. Upon notice, defendant’s deed was introduced, which covered on its face only lot No. 9, upon which the dwelling-house occupied by her was erected. This lot adjoined lot No. 11, the property in dispute. Testimony was introduced in her behalf to the effect that, about the year 1852, these lots, Nos. 9 and 11, were occupied by one Smith, who built the dwelling thereon in which defendant lived, and that he placed in one enclosure by a fence both of
. We have carefully read the testimony in this case, and the above is a fair report of it in substance. Now, w'hen. the plaintiff closed his testimony, he perhaps made out a prima facie case, upon the doctrine that w'here one buys a tract of land and receives therefor a deed, accurately describing-it by metes and bounds, and goes into possession thereof, using and occupying a portion of the tract thus conveyed, he has constructive possession of the remainder, and it ripens into a prescriptive title if it be thus held for seven years under color of title. We do not mean to say that when his testimony was closed a prima facie case w'as not made out for the plaintiff; but it was only' prima facie, and subject to be rebutted by proof. If an action, therefore, be brought by such a claimant of land against a party holding the property in dispute adversely, twm defenses can be set up. First, that the plaintiff never had such possession, either actual or constructive, as w'ould ripen into a title; and this could be shown by proving adverse possession in some other party, although defendant would fail to make out any title for herself or for such other persons holding adversely. Plaintiff must recover on the strength of his owm title, and if such proof as that were offered in defense to his suit, it w'ould show a want of prescriptive title in him, that is, a want of the necessary possession, either actual or constructive, as could ' possibly ripen into title. Another defense W'ould be that the defendant had, prior to the bringing of suit, been in bona fide, peaceable, and adverse ppssession of the property in good faith as her own for twenty years; and this would show her title