16 S.E.2d 433 | Ga. | 1941
1. The consent rule in common-law ejectment required only that the defendant admit lease, entry, and ouster. Cumming v. Butler,
(a) The consent rule has never in this State extended to admission of title.
(b) The consent rule in this State is deemed by law to be filed in every case. Code, § 33-111.
2. In common-law ejectment the land must be described in each demise with such certainty that in the event of a recovery by the plaintiff the sheriff may, from the description given, execute the writ of possession. Harwell v. Foster,
3. The instant case is in ejectment for recovery of possession and mesne profits of definitely described land in the southeast corner of Ninth and Swindle streets in the Town of Nashville, Georgia. The uncontradicted evidence shows that the real plaintiff and her immediate grantor, in whom demises were properly laid, entered in good faith and were successively in continuous adverse possession, under color of title, of the land so described, for more than seven years before the alleged ouster. Consequently the evidence demanded a finding for the plaintiff on the basis of title by prescription. Code, §§ 85-402, 85-407. Evidence tending to show that defendant had title by purchase from the city (as to which see 3 McQuillin on Municipal Corporations (2d ed.), 747, § 1242) to other land, three blocks away on Mathis street, that had been sold and bought in for city taxes, was irrelevant to the issues as made by the pleadings, and did not militate against the title of plaintiff to the land described in her petition. In the circumstances the verdict for the defendant was unauthorized by the evidence, and the judge erred in overruling the general grounds of the motion for a new trial.
4. No ruling will be made on the assignments of error in the special grounds of the motion for a new trial, all founded on evidence introduced *684 by the defendant on the basis of her claim of title to the lot on Mathis street, thus presenting questions that can not arise on another trial of the case.
Judgment reversed. All the Justicesconcur.