113 Ga. 613 | Ga. | 1901
Isom brought a suit against Knight for the recovery of a certain tract of land situated in Early county. On the trial, upon the conclusion of the evidence, the court directed, and the jury accordingly returned, a verdict in favor of the defendant. The plaintiff moved for a new trial, which was granted by the court, and the defendant excepted. This is the first grant of a new trial in the case, and “the first grant of a new trial will not be disturbed by the Supreme court, unless the plaintiff in error shows that the judge abused his discretion in granting it, and that the law and the facts require the verdict notwithstanding the judgment of the presiding judge.” Civil Code, § 5585. The assignment of error in the bill of exceptions is, “that the court erred in granting a new trial in said case, because there was no other verdict which could legally have been rendered in said case, under the facts thereof, except a verdict for the defendant.” Did the law and the facts of this case require the verdict which was directed by the court and rendered by the jury ? We think that they did, and that therefore the judge erred in granting a new trial. The plaintiff showed no title in himself, and relied for a recovery solely upon prior possession. He plants himself, in this court, upon the proposition that “ plaintiff in the court below, by showing prior possession, made out a prima facie case which put the defendant to the proof of paramount title.” Did the plaintiff show prior possession, and thus make out a prima facie case in his favor ? He introduced a deed, dated August 2,1859, from Hutchins, as sheriff of Early county, to Joyner, and successive deeds, executed at various dates thereafter, making a complete chain from the sheriff down to himself. . He did not show that any of his predecessors in this chain had ever been in possession of the land in dispute. Upon the question of possession he testified as follows: “ I went into possession of it only by leasing it to Mr. Hilton for turpentine purposes for three years and putting him into possession.
We do not think this testimony was sufficient to show prior possession of the land in the plaintiff. “ Actual possession of lands is evidenced by inclosure, cultivation, or any use and occupation thereof which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another.” Civil Code, § 3585. “Constructive possession of lands is where a person having paper title to a tract of land is in actual possession of only a part thereof. In such a case, the law construes the possession to extend to the boundary of the tract.”' lb. § 3586. There is nothing in the evidence which shows that this land, or any part of it, was inclosed or cultivated, or that there were any improvements whatever upon it. So far as appears from the evidence, when the plaintiff leased it to Hilton, it was simply a tract of timbered land, uninclosed, unoccupied, and unimproved. The plaintiff’s statement that he put Hilton in possession is a mere expression of opinion, which can amount to nothing, unless supported by facts which show that Hilton really did take possession of the premises. Evidently the plaintiff did not put Hilton in possession of the land at the time he leased it to him; for Hilton did not begin to cut the timber for turpentine purposes until about two years afterwards. The testimony upon which the plaintiff’s claim' of prior possession must stand or fall is, that Hilton “ commenced cutting it about two years after [the plaintiff] leased it to him;” and “ during the time Hilton was working the land for turpentine [the plaintiff] sold it to Emily J. Tipton.” Does the fact that Hilton “ commenced cutting it ” show that he was in possession of the tract of land sued for ? We think not. One might commence to cut timber upon a lot of land for turpentine purposes by merely cutting a single tree thereon; yet we apprehend that the cutting, or “ boxing,” of one tree, or several trees, without more, would not be sufficient to show that the one who did this was in possession of the entire tract upon which the tree, or trees, stood; nor do we
If the evidence could be considered as being sufficient to show that the plaintiff had prior actual possession of any part of the tract, it is very clear that he could not recover the entire tract sued for, upon the ground of prior actual possession of the same. It is equally clear that he could not, on this ground, recover any part thereof; for the evidence utterly fails to identify the part that he had possession of and to distinguish it from the parts that were not in his possession. So, even had he sought to have amended his pleadings for such a purpose, he could not have recovered any part of the land upon the ground of prior actual possession of the same. Tripp v. Fausett, 94 Ga. 330. Under the evidence, could he have recovered the land sued for upon prior actual possession of a part and constructive possession of the whole ? Does the evidence show prior actual possession of any part of the land ? As we have already intimated, there is nothing in the evidence which shows that Hilton worked any part of it in such a manner and for such a length of time as to make his use and occupation of such, part so notorious and exclusive as to amount to actual occupation as defined by the Civil Code. We do not think, therefore, that the testimony was sufficient to show prior actual possession of any part
Judgment reversed.