163 Ga. 37 | Ga. | 1926
Eor the pleadings and issues involved in this case, see the report thereof when it was here before. Towson v. Horn, 160 Ga. 697 (128 S. E. 801). On the last trial the jury returned a verdict in favor of Towson. Horn made a motion for new trial, which was overruled, and to this judgment he excepted.
Horn brought bail-trover, in the city court of Dublin, against the M., D. & S. Railroad Co., to recover certain timber shipped by Towson over that railroad. The railroad company surrendered the timber to the sheriff, who, under the order of that court, sold the same and held the proceeds. Towson filed his equitable petition in Laurens superior court, in which he alleged that said timber was cut upon land to which he had title, and that it was his property and not the property of Horn. Towson prayed that Horn be restrained from proceeding with his trover suit in the city court, that the sheriff be enjoined from-paying out the
On the trial in the superior court, Towson, in order to show title in himself, introduced a deed from certain grantors to himself and J. C. Towson, to a tract of land embracing, as Towson claims, the land on which the timber in dispute or some of it was cut, dated May 10, 1917. He testified that in the spring of 1920 there was a parol division of this tract of land between himself and J. C. Towson, and that under this division the land on which this timber or some of it was cut fell to him. To rebut the proof of Towson as to said parol division, Horn tendered in evidence a security deed given by W. F. Towson and J. C. Towson to Eead Phosphate Company, dated February 16, 1921, embracing the tract of land which Towson testified had been divided under said parol division between himself and J. C. Towson. The court below rejected this deed, and to this ruling error is assigned by Horn. He contends that the plaintiff can not recover the full proceeds of the sale of this timber unless he owned the land from which it was so cut in severalty, and that the fact that the plaintiff and J. 0. Towson gave this security deed after the alleged parol partition of this land between them tends to show that there was no such parol division thereof, and that the plaintiff did not own the whole interest in this land, for which reason the verdict in his favor is contrary to law.
The defendant further asserts that this proceeding was in effect an action of ejectment, and that in such an action, while a tenant in common may sue severally, he can recover no more than his own interest. Undoubtedly this is true. Sanford v. Sanford, 58 6a. 259 (2); Wilson v. Chandler, 60 Ga. 129; Thompson v. Sanders, 113 Ga. 1024, 1026 (39 S. E. 419). The reason of this rule is, as stated in Sanford v. Sanford, that cotenants might be prosecuting their several actions at the same time, that one could not recover the whole premises, that one could not be rightfully the means of obstructing or defeating the other, that the recovery
In the second special ground of his motion for new trial the defendant asserts that the court erred in not making the administrator of the sheriff who sold this timber and received the proceeds of the sale a party to this cause before proceeding with the trial, it appearing that the sheriff was dead and that an administrator had been appointed on his estate. By a note to this ground the court states that this fund was paid by the sheriff into the registry of the court. In view of this fact, and in view of the further fact that no judgment was prayed against the deceased sheriff or his administrator, the ruling of the court in this matter was not erroneous.
In the third special ground of the motion for new trial the defendant asserts that “the court erred in admitting and in
In the fourth ground of his motion for new trial the defendant complains that “the court erred in failing to charge the jury the consent rule as set forth in section 5585, Code of Georgia, 1910.” This principle is applicable alone to an action of ejectment brought in the fictitious form under the common law. It has no application to a proceeding of the kind instituted by the plaintiff in this case.
In the fifth ground of the motion for new trial the plaintiff alleges that the court erred in permitting the defendant’s counsel, over objection and without restraint, rebuke, or correction, to assume before the jury a position that plaintiff had been in possession of the land in controversy ever since his claim of purchase and was in possession at the moment of the trial, and that the defendant was not and .had not been in possession of said land, although he ruled with defendant that the burden was on the plaintiff. This ground is without merit.
In the sixth ground the defendant alleges that the court erred in not charging the law of actual possession, as defined in section 4165 of the Civil Code of Georgia, as actual possession was a controlling and vital issue in the - case, and was the main defense relied upon by him. We do not think that the evidence required a charge upon this subject. If the defendant acquired a prescriptive title, it was by virtue of constructive and not actual possession. A verdict in his favor, based on actual possession, would not be supported by the evidence, as his possessio pedis was not defined.
Judgment affirmed.