11 Ga. 119 | Ga. | 1852
By the Court.
delivering the opinion.
It is true, that the plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary’s, and hence it is a general rule, that the defendant may •defeat his recovery, by showing an outstandingtitle in a third person. But if the plaintiff, as in this case, relies upon possession acquired bom fide, and nothing else, and the defendant is in'possession as a trespasser, the defendant cannot rely upon that tortious possession, nor can he protect himself by showing a ■ title in a third person. The law will not permit him to take any thing, or any account, by his trespass. Thus, I apprehend, is briefly stated the whole doctrine upon this' subject. Jackson ex dem. Duncan and others vs. Harden, 4 Johns. R. 202. 6 Wend. 671. 7 Cow. 187. Ib. 643. 5 Geo. R. 39. 2 Johns. R. 22. 10 lb. 337. The Court held, that the defendant in this case} might show title in a third person. The charge is to be taken in reference to the facts proven. If the defendant came into possession as a trespasser, the charge was erroneous-, but
The defendant also read in evidence, a bond for titles, from Milford Jones to the plaintiff, for one-half of lot No. 91, which did not express which half of that lot was to be conveyed. The plaintiff bought the north half of lot No. 91, as his vendor, the obligor in this bond, testified, and did not buy the modicum, in controversy, that being part of the south half. Upon this bond was a transfer to one Boynton, by the obligee, the plaintiff in the action. In reference to this bond, the Court instructed the Jury, “ that if they believed that the premises in dispute was embraced in it, and that the plaintiff had transferred it to Boynton, then he had parted with all his right to the land, and they should find for the defendant.” This charge is excepted to. It is to be inferred from all the evidence, that this bond did not embrace the portion in litigation, but as it was itself silent as to which half of lot No. 91 it contemplated, and the plaintiff set up a claim to a part of one of the halves, to wit: the south half, and that part of the south half was also claimed by defendant, there was some vague ground to infer that the part in litigation was embraced. It was not, therefore, wholly a hypothetical charge. Whether it was so embraced, the Court left to the Jury. But it
Let the judgment be affirmed.