101 Ga. 5 | Ga. | 1897
This was an action of ejectment for the recovery of a certain lot of land in Bibb county, and by amendment to the original petition a demise was laid in Thomas B. Ellis. The suit was filed March 28th, 1893. The defendant pleaded the general issue. At the trial, the plaintiff’s attorneys stated to the court that they relied for a recovery upon the prior possession of Thomas B. Ellis, who was the real plaintiff in the case. At the close of the plaintiff’s evidence, the defendant’s counsel moved for a nonsuit, which was granted by the court; to which ruling the plaintiff excepted, and he now assigns the same as error. J. E. Ellis was the only witness introduced in the case. From that portion of his testimony which is material to the decision of the case, it appears that he is the father of the plaintiff, who was twenty-six years old in February preceding the trial of the case ; that Thomas Bagby, the plaintiff’s grandfather, made a parol gift of the land to the plaintiff in 1876, and told the witness to go and take possession of it; that the lot was then vacant, and remained vacant until January, 1885, when the witness began building a storehouse on it, which he completed in February of that year; that at the time that he built a house on the lot he also put a fence around it; that on
The plaintiff neither showed title in himself, nor in his alleged donor, nor any possession in the latter. He claimed to have had prior possession of the premises in dispute, and relied for a recovery solely on that. “A plaintiff in ejectment may recover the premises in dispute upon his prior possession alone, against one who subsequently acquires possession of the land by mere entry, and without any lawful right whatever.” Civil Code, § 5008. As Chief Justice Bleckley says, in Bagley v. Kennedy, 85 Ga. 706, “This expression of the law is in accordance with the general authorities on the question.” See in that case the numerous citations on this point, made by the learned'
If the plaintiff in this case showed prior possession in him-, self, under a bona fide claim of ownership, he was entitled to recover, unless the defendant showed a better adverse title, by possession or otherwise. Did the plaintiff make out such a case? The evidence establishes the fact that J. E. Ellis, the father of the plaintiff, took possession of the land sued for and put valuable improvements thereon prior to the possession of the defendant, or of the possession claimed for Lizzie Walker, under whom the defendant apparently holds. It further appears from the evidence, that the elder Ellis, when he took possession of, and made these improvements on, the premises in dispute, did not do so for himself, but was acting for and in behalf of his son, the plaintiff. At the time that the grandfather of the plaintiff made a parol gift of the land to him, the plaintiff being an infant of tender years and incapable, both in law and in fact, of acting for himself, his father had a right to' accept the gift for him. Civil Code, § 3565. For the parent to accept, for his infant child, a parol gift of land, without taking possession of the land for the child, would be useless. Possession is the first step that a donee, under a parol gift of real estate, can take toward perfecting title in himself. This step, followed by valuable improvements placed upon the land upon the faith of the gift, will place him in a position where he can legally demand of the donor, and, if need be, enforce a-specific performance of the parol promise. Civil Code, § 4039 ; Mims v. Lockett, 33 Ga. 9 ; Porter v. Allen, 54 Ga. 623 ; Hughes v. Hughes, 72 Ga. 173; Floyd v. Floyd, 97 Ga. 124; Ogden v. Dodge County, Ib. 461. Possession alone will lay the foundation for a prescription; possession and valuable improvements upon the faith of the parol gift, will give the right to demand;, a transfer of the donor’s title. We think, therefore, that the' father of the plaintiff, during the life of the donor,' had the right, upon the faith of the parol gift, to take possession'.of the. land for his infant son; especially if he intended to put valua
Judgment reversed.