67 Ga. 528 | Ga. | 1881
This was a claim case in which a verdict was returned finding the property subject. A motion for new trial was made, which was overruled, and plaintiff in error excepted. The ft. fa. levied was in favor of John Neal, transferee, vs. James H. Hill, Paul E. Tarver and Edwin T. Jones, partners using the firm name of James H. Hill & Company, and was issued on the 27th December, 1857, for the sum of $6,913.64, with interest and cost. The ft. fa. was levied on the north half of city lots in the city of Albany, No. 26, on Jackson street and No. 28 on Residence street, as the property of E. T. Jones. To this levy plaintiff in error interposed a claim. The levy was made 1st December, 1868, the claim interposed on 17th January, 1881.
Claimant introduced in evidence a deed from E. T. Jones to E. Tompkins for the premises in dispute, dated 1st October, 1859, aad also a deed from Tompkins to J. A. Hill, and from Hill to claimant; also a release from John Neal, plaintiff, to C. P. Hartwell, releasing over one-third of the Freddie Tarver place, also the Hartwell plantation which was levied on by this fi. fa. The Hartwell place contained 1,260 acres, the Freddie Tarver place 2,000 acres The claimant proved Neal had been paid the money for the release on the Hartwell place ; would sell for cash at two or three dollars per acre. The third interest in the Tarver place would sell for $1.00 per acre ; other testimony valued it at $5.00 per acre. There was testimony that Tompkins and his tenants and claimant and his ten. ants occupied the premises in dispute continuously from date of sale by Jones to the time of this levy.
In the motion for new trial the plaintiff in error insists that the verdict was contrary to law and evidence, and that the court refused to charge the jury the following written requests made by counsel for claimant:
(1.) “ If the proof shows that Tompkins and his tenants, including claimants, had continuous possession of this property under a written deed from Jones from 1st October, 1859, and such possession was bona fide, continuous and notorious up to the time of -this levy, 1st December, 1868, then I charge you the claimant had a good prescriptive right. This is the true rule of law upon this subject since the adoption of the Code 1st January, 186.3 ; the possession of claimant, if as above stated up to the levy, is good as adverse possession, because- the statute of limitátions, as to real estate, was changed by the Code, and title by prescription was adopted in lieu thereof. Hence prescriptive title was not affected by the act suspending
' (2.) “ If the proof does not show that the claimant had notice of this levy until his claim was made, then I charge you that the prescriptive right continued to run until such notice of the levy was proved, or the interposition of this claim. If such was the proof, then you should find the property not subject.”
(3.) “ If the proof shows that Tompkins purchased from Jones in October, 1859, and that the Hartwell plantation and one-third of the Freddie Tarver place was the property of Paul Tarver, one of the defendants, and that of his executors after his death, and that this was after ,859, then the claimant had the right to have these two plantations sold under said Neal fi.fa., and if the proof shows that John Neal, for a valuable consideration, released these two plantations from his judgment, then I charge you this property cannot be subjected, but such release operates in law to discharge this property.”
The statute declares “ that adverse possession of land under written evidence of title for seven years shall give a title by prescription. The exception is that if such written title be forged or fraudulent, and notice thereof be brought home to the claimant before or at the time of the commencement of his possession, no prescription can. be based thereon.” Code, §2683.
Inasmuch as there was error, in our judgment, in the court refusing these requests, we áre constrained to reverse the judgment of the court below and order a new trial, deeming it unnecessary to discuss the other questions made in this record.
Let the judgment below be reversed.