163 Ga. 776 | Ga. | 1927
1. In DeVore v. Baxter, 155 Ga. 109 (3) (116 S. E. 610), that being an equitable action based on a petition and answer, it was held: “The general rule is that estoppel, to be relied on, must be pleaded. Estoppel was not pleaded by the defendant; and it was-error for the court, in directing a verdict for the defendant, to do so upon the ground that the plaintiffs were estopped from bringing and maintaining the suit.” The foregoing general rule was recognized in Askew v. Amos, 147 Ga. 613 (95 S. E. 5). That case, involving a statutory claim, was held to be an exception to the general rule. Under application of the foregoing general rule, the case now under consideration being an equitable action to enjoin the cutting of timber, in which there was a petition and answer but no special plea alleging an equitable estoppel as against the plaintiff, whether or not the evidence upon estoppel, which was admitted without objection, was sufficient to conclusively show grounds for estoppel, there being no special plea or allegation in the answer alleging an estoppel, the judge was not authorized to direct a verdict for the defendants on the ground of estoppel.
2. The instant case is an equitable action to enjoin the cutting of timber • on that part of lot number 143 in the 6th district of Early County which lies west of Spring Creek. The evidence for the plaintiff was sufficient prima facie to show a prescriptive title to the land by a predecessor in title acquired prior to the year 1901, based on seven years adverse possession under an unrecorded deed, and to connect himself with such predecessor. The evidence for the defendants showed a duly recorded deed to their predecessor in title (with whom they connected themselves) to the whole of said lot number 143, which was executed in 1901, and continuous possession by said predecessor under such deed for more than seven years and up to the filing of the suit, by actual enclosures and
{a) If the plaintiff’s predecessor in title acquired a prescriptive title to the land by seven years adverse possession under color of title prior to the year 1900, such title would not be defeated by subsequent abandonment of possession.
(6) Even if the possession of the plaintiff and his cotenant was not a possession that would support a prescriptive title, they as grantees would succeed to the prescriptive title acquired by their grantor.
3. The court erred in directing a verdict for the defendants.
Judgment reversed.