67 Ga. 606 | Ga. | 1881
This was an action of ejectment brought to recover a tract of land in the county of Dougherty. The jury found for the plaintiff the premises in dispute, and the defendant excepted to various rulings of the court pending the trial, and assigns for error said rulings.
This cause was here before and is reported in 63 Ga., 244. The points then ruled, unless so changed by new proof on the trial now to be reviewed as to make those principles inapplicable, are res adjudicata ; and it will simplify matters to dispose of them first.
A new fact, however, it is said, is here that may not have appeared in the record before, and probably did not; because Judge BLECKLEY, in delivering the opinion then, says, that “Though the possession of Jones was adverse, its continuity was broken by the intervening permissive possession of Tompkins,.” evidently taking it as true that from the 8th of January, 1864, when Jones deeded back to Tompkins, up to the 23d of the same month, when Tompkins conveyed to Hines, Tompkins again was in ac
The conclusion is logical, as appears to us, that this new fact, considering it so, does not vary the case made and decided in the 63d Ga. If Tompkins attempted to tack to a possession of his this possession of Jones’, orto rely on seven years’ possession by himself or anybody else with himself, it is clear that he could not set it up against Rutherford till he had paid the purchase money; and Hines cannot tack any possession or right of possession in Tompkins to his own adverse possession, because Tomp-kins never had any right to possess, or actual possession which was adverse to Rutherford. For these reasons we think the ruling in- the 63d still controls this case on this point.
It is argued that the words “ may be levied,” in the first section cited, and the words “ it shall and may be lawful,” in that last cited, are equivalent to an imperative command to the vendor to pursue this remedy where he holds the legal title and has given bond for titles ; that “ may ” means “ shall,” and must be so construed. We think that the words are permissive, not mandatory, and' that it would do violence to their obvious import so to construe them in these statutes. In respect to the other position, that the plaintiff had the two remedies, and having elected to sue on the note could not bring ejectment, it is enough, perhaps, to say that the plea has been held one in abatement by this court at this term, and that it should be filed at the first term ; and as this was not so filed, the point is controlled by that case. But we think, as intimated in the case referred to., Dykes, trustee, vs. McVay, that on the merits, if properly in, the one case would not bar the other, or that because the party had elected to sue on the note for the balance of purchase money and got judgment thereon, that he would therefore be forced to go on and make a deed to the land and sell it as the property of the maker of the note, rather than sue the party in possession of it on the legal title with which he had never parted or agreed to part until the purchase money was all paid. The only effect would have been to try the title in a claim case made by Hines instead of in ejectment. All defenses good in one would have been equally so in the other form of action. See Dykes, trustee, vs. McVay, this term, and cases cited there. But this case really does not come under section 2894 of the Code, for even if it were the same cause of action, it is not between the same parties.
The above are the controlling points in this case, and those pressed in the argument here. Some arose on mo
We understand that the amount of mesne profits was agreed upon, and thus the question about setting off taxes paid by defendant against them is not before us, and we do not see how taxes paid by one'in possession of another’s land can defeat the true owner or be set off against the land itself.
We see no error in striking the pleas numbered and set out in the record and the part of number eight which was stricken, for .the question that portion made had been ruled in this very case as reported in the 63d. Ga.
Judgment affirmed.