Doe ex dem. Hindsman v. Roe
22 Ga. 47
Ga.
1857
Check Treatment

By the Court.

McDonald, J.

delivering the opinion.

This ejectment was brought for the recovery of about five acres of land, claimed as a part of the eastern half of tract of land No. 231, in the 2d district of Coweta county. Some of the demises are for the half lot, but the contest is for a few acres only. The defendant pleads the statute of limitations. The action was instituted on the 14th day of February, 1853. There was a demise from Joseph W. Walton, the grantee of the entire tract of land. To support this demise, the grant from the State of Georgia to Joseph W. Walton ivas introduced. The‘plaintiff offered no other title.

The defendant’s title deeds show that only one hundred one and one-fourth acres of land were claimed by him. The whole tract contained two hundred two and a half acres. The possession claimed by Evans, under the bond for titles and deed from Camp, was of half the lot of land only. The deed from Camp to Evans, was for half the tract of land, and stating that it was to be divided north and south.

The line previously run was not recognized by the contracting parties. There was no specified, defined boundary *51between the two parts of the lot. That was an open imaginary line to be settled and adjusted at the convenience of the parties. The deed from Evans to Lee says nothing about the line, but conveys one hundred one and one-fourth acres ofland. The deed from Camp to Evans, through which he claims, was notice to him that the line was to be run after that. Accordingly, in the latter part of the year in which S„ W. Lee purchased the land, the line was run, the son-in-law of Mr. Lee and the tenant in possession being with the surveyor, audit was found that the line which had been run before the deed, and not recognized between the parties, had been incorrectly run. This line was run in 1852. In 1853 the same surveyor re-surveyed the land and found that the defendant had in his possession five acres more than half the lot ofland.

[1.] Upon looking carefully through the evidence we find nothing to warrant the charge given by the Court to the jury, that the fact of no title being shown in Hindsman, one of the lessors of the plaintiff, and that no authority was shown for making the division between him and Evaus, did nof prevent the statute from running in favor of Evans, if he held the premises up to the designated line adversely under color of title. Neither of the deeds designated a line ; Camp says that Evans claimed half the land; Henry Evans said: that Charles Evans went into possession of, and claimed one' half of the lot in 1842, and continued in possession up t© 1852. In 1845 he saw marks on trees made in dividing the land, but the written evidence — the deed accepted by the parties — evidence which is better than the frail recollection «iff witnesses, shows that that line, whenever and wherever rm, was not recognized as the dividing line. On the contrary, it shows that it was not, for by the deed, the line was to be run. The line run by Johnson in 1845 was repudiated for some unexplained reason, and no witness speaks of a designated line, up to which the defendant, or any one under whom he claimed, held the land.

*52[2.] The charge of the Court to the jury that “ a discrepancy of a few acres between the quantity specified in the deed and the actual quantity in possession, made no difference, if the premises under the bond or deed were distinctly defined and bounded by ascertained limits,” for the same reason, was erroneous. The deeds did not define the bounds by ascertained limits. They were to be ascertained after-wards. Indeed, the conveyance was of a part of a tract of land, which entire tract was defined by metes and bounds, but the part conveyed was described by the number of acres to be taken from that entire tract, and the statute of limitations could not begin to run, according to the terms of the deed, until the line was run, or until there bad been an actual undisturbed possession for so great a length of time as to create a legal presumption, that the division had been made. The conduct of the parties, in running the line in 1852, repels any such presumption. For these last reasons the Court ought to have given in charge to the jury-the request of the plaintiff’s counsel, that if the jury believed from the evidence, that it was specified in the deed from Camp to Evans that the land was to be divided equally, the statute of limitations did not. begin to run until it was divided.

Judgment reversed.