| Ga. | Dec 13, 1906
1. A plaintiff in ejectment may recover in his prior possession alone. Civil Code, §5008. This is true, even though he may have relinquished such possession, if such relinquishment were made animo revertendi; and whether such relinquishment was so made is a question of fact for the jury. Jones v. Nunn, 12 Ga. 469; King v. Sears, 91 Ga. 577(7).
2. Ordinarily it is not necessary to anticipate the defense, and where the plaintiff relies on prior possession, he need not aver that the defendant is a trespasser, but evidence of prior possession alone is sufficient to put the defendant on proof that he has a better title than that of the plaintiff. Moss v. Chappell, and cases cited, 126 Ga. 198.
3. The evidence for the plaintiff being sufficient to show prior possession, it was erroneous to dismiss the case at the conclusion of the plaintiff’s evidence. Judgment reversed.