Gay v. Mitchell

35 Ga. 139 | Ga. | 1866

Walker, J.

As early as the case of English vs. Register, 7 Ga. R. 389, this Court decided that when the tenant in possession disclaims having any title to the premises, the presumption of law is that he holds the possession i/n subordination to the title of the true owner. In delivering the opinion, Judge Lumpkin, p. 391, says: “ The legal principles which I assert and maintain are, first, that he who has a perfect legal paper title to the land, is presumed in law to be seized and possessed thereof. Second, that such seizin and possession is co-extensive with the right specified in such paper title, and continues in such true owner of the land, until he is dis-seized or ousted from such possession by the actual possession in another, under color of title or a claim of right. Third, that the statute of limitations does not commence to run against the true owner of land, who is presumed in law to be in the possession thereof, until he is disseized and ousted of such possession by the actual possession of another, who enters upon the land, under color of title, hostile in its inception to the title of the true owner ; or when one enters upon the land and takes actual possession thereof, without paper title, under a claim of right.” This has been, ever since, the doctrine of this Court. In Lawson, administrator, vs. Cunningham, administrator, 21 Ga. R. 454, this Court decides that, “A possession that in its commencement is not adverse, becomes adverse only when the holder, changing his mind, intends it to become adverse, and knowledge of such his change of mind 'come3 to the true owner.” In Stamper vs. Griffin, 20 Ga. R. 312, the point decided by the Court is stated in these words: “ lie who has the title to land, is to be deemed to be in the seizin and possession of it, and to continue so until ousted thereof by an actual possession in another, under a claim of right. The possession of one who enters, disclaiming title, is to be considered as a possession by the consent of him who has the title; nor will a continuance of this possession avail to mature a title under the statute of limitations, until the character of the possession has been changed, either by a declaration to that effect, communicated to him who has the title, or by the exercise of acts of ownership inconsistent with a tenancy by the consent of him who has the title.” In delivering the opinion of the Court, p. 321, Judge Benning says : “ Therefore, we think that if Booty entered as a £ squatter ’ — entered disclaiming title, he was to be considered as holding the possession as tenant at will to the true owner, and as remaining such tenant until something happened which might serve to notify the true owner that Booty had ceased to hold as such tenant, and was holding adversely to him. What this something would have to be, we do not undertake to specify. We think, however, it would have to be somewhat more than a private attornment to the tenant to another claimant of the land.” From these authorities, it follows that the Court erred in overruling the motion for a new trial; and instead of giving to the jury the charge, as set out in the 8th ground of the motion, he should have charged: That if Curry went into possession of the premises in dispute as a mere “squatter,” disclaiming title, and sold his claim to Eichard Gay, and Gay to Daniel Kirkland, that Kirkland’s possession would be in subordination to the title of the true owner, and not hostile thereto. And that in order to make such possession adverse, something must be shown to have happened which might serve to notify the true owner that Kirkland ceased to hold as his tenant, and was holding adversely to him ; and the mere private attornment to some one also claiming the land without any legal title thereto, would not be sufficient to change the possession from a subordinate to an adversary character,

Judgment reversed.