140 Ga. 240 | Ga. | 1913
as administrator de bonis non of the estate of James David, applied to the court of ordinary of Hart county for leave to sell a certain tract of land. Authority was given by an order from the court, as prayed. Hpon his proceeding to bring the land to sale a claim was filed by Mary David, she being in possession, and being the widow of James David, who died in the year 1862. The administrator brought a petition setting forth that the land in controversy belonged to the estate of his intestate, and that it was necessary for him to have possession of the same for sale for the payment of the debts of the estate !and for distribution among the heirs. Mary David answered, alleging that the property was her own: first, because she had a prescriptive title resulting from twenty years adverse possession of the land; second, because she bad prescriptive title resulting from possession under color of title for seven years; and third, because the property had been given to her by her father, William Ray. The verdict was for the plaintiff. The defendant filed a motion for a new trial; and this being overruled, she excepted.
It was established on the trial, by uncontroverted evidence, that the land in question was the property of James David at the time of his death, unless he had been divested of title by a certain deed which, it appears from certain parts of the record, he had executed in the year 1862 to William Ray, the father of the defendant, purporting” to convey this property, though the deed itself was not introduced in evidence. The execution of a deed absolute in form,
1. The court properly instructed the jury in this ease, that, in the suit brought to cancel the deed from the plaintiff’s intestate to Bay, the effect of the decree was to leave the title to the property which that deed purported to convey where it was before the deed was executed; that is, in James David, or rather in his-estate, Us he had died leaving a wife and children. Nowhere in the bill brought by Mary David to have the deed from James David to Bay set 'aside and canceled does she assert title in herself, or make any allegation from which an inference could be drawn that she was asserting title in herself. , She distinctly alleged that under that deed Bay held the '“property in trust for said James David;” and while she did not mention the fact that she had children, she nowhere alleged that at the time of her eviction her possession was in her own right or under claim of title. Throughout that petition she treated the deed from James David to her father as a mere security deed or as a mere mortgage; she called it a mortgage in her petition. And a decree canceling that paper, as the court said' in the charge, had no other effect than to leave the title to the property where it was before. While it restored her to the possession of the land, the possession thus restored was of the same character as it was before she was evicted and before the security deed was canceled; and there is no pretense that up to the time of the eviction her possession was in her own right. For, up to the time of her eviction, as she shows herself, she did not know that Bay was making such á claim of title to the property as would enable him to make any gift of it to her. “Verdicts are to have a reasonable intendment, and are to receive a reasonable construction.” Civil Code, § 5927. And the entire pleadings and all undisputed facts proved upon the trial may be examined and considered in construing the verdict; Mayor etc. of Macon v. Harris, 75 Ga. 761.
2. Another ground of the motion for a new trial complains of
3. Inasmuch'as the evidence for the plaintiff showed title in his intestate, as alleged in the petition, and the defendant relied upon her assertion that she had acquired a good prescriptive title, the court did not err in so charging the jury as to place upon the defendant the burden of establishing the prescriptive title asserted, by a preponderance of evidence.
4. The defendant’s assertion of a good prescriptive title by virtue of seven years possession under color of title was based entirely upon her possession under the verdict and decree set forth in the opening paragraph of this opinion; and inasmuch as that decree does not purport to vest her with title or to find that she was vested with title, it did not amount to color of title. Beverly v. Burke, 9 Ga. 440 (54 Am. D. 351); Street v. Collier, 118 Ga. 470 (45 S. E. 294); Hansen v. Owens, 132 Ga. 648 (64 S. E. 800).
5. Inasmuch as the evidence failed entirely to show that the possession of the land in controversy by the defendant wap under color of title, the instructions of the court in reference to the defendant’s contention that she had a prescriptive title, based upon seven years possession under color of title, will not be examined critically to see if they are entirely accurate; for, having shown no color of title in herself, the defendant was not injured by a charge upon that subject, even though it was not in all respects accurate.
6. The court did not err in charging the jury in substance that the defendant could not set' up a title in this case derived from a
7. “There can be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession.” This is the language of the statute. Civil Code, § 3725. And the substitution of the expression “actual notice” for “express notice,” in charging this code section, was not error. Morgan v. Mitchell, 104 Ga. 596 (30 S. E. 792).
8. The request to charge was neither adapted to nor authorized by the evidence, and it was not error to refuse and fail to charge the same.
9-10. The rulings in the ninth and tenth headnotes require no elaboration.
Judgment affirmed.