May v. Sorrell

153 Ga. 47 | Ga. | 1922

Lead Opinion

Hines, J.

(After stating the foregoing facts.)

1, 2. The first and second headnotes do not require any elaboration. In view of the rulings therein made, the only thing left for the determination of the court is whether the court below erred in overruling the plaintiff’s motion for a new trial.

3. Counsel for the plaintiff insist very earnestly that the judgment of the court below, overruling the motion for new trial, should be reversed on the general grounds. It is urged that this court, when the case was here before (May v. Sorrell, 149 Ga. 610, 101 S. E. 535), held that the bond for title under which Sorrell claims was void for lack of sufficient description; that therefore the same could not be relied upon as color of title under which prescriptive title could be acquired by possession for seven years; that for this reason the defendant would have to establish a title by prescription resulting from possession of this land for twenty years; and that he wholly failed to establish such title by prescription, as the land in question was in a swamp, wild and uncultivated. It is insisted that the defendant could only defend, under these circumstances, by showing such possession for twenty years as would ripen into a prescriptive title; and that, having failed to do so, a new trial should be granted in this case.

At the time Sorrell bought from Bonus Turner, the paper title to all that part of lot 389 in the ninth district of Colquitt county, north of Bear creek, was in Bonus Turner, under a deed to him from the plaintiff. While the title was thus in Turner, Sorrell claims to have bought these lands, and that he paid Turner therefor in full. This was before the plaintiff undertook to have Turner correct the alleged mistake in the deed by which the plaintiff conveyed to Turner the premises in dispute. When Sorrell bought from Turner, and, as he alleges, paid Turner in full for the tract of land embraced in the deed from May to Turner, which deed embraces the premises_in dispute, the title was in Turner. As both parties claimed under a common grantor, it was not necessary for Sorrell to show title back of such common grantor. Sorrell set up the purchase of the premises in dispute from Turner, with full payment of the purchase-money. lie prayed that Turner be required by the decree of the court to specifically perform the contract by which he sold the premises in dispute to him.

Full payment of the purchase-money alone, accepted by the vendor, would be sufficient part performance to justify a decree requiring Turner to convey this land to Sorrell. Civil Code, § 4634. Furthermore, Sorrell, being the defendant, could successfully defend by showing the full payment of the purchase-money. Payment in full of the purchase-money would give him such title as would enable him to defend in this case against the attack made upon him by the plaintiff;. Payment in full of the purchase-money, in this State) gives to the purchaser a perfect equity, which is a good title even at law, and is sufficient to support or defeat an action of ejectment. Pitts v. McWhorter, 3 Ga. 5 (46 Am. D. 405); Peterson v. Orr, 12 Ga. 464 (58 Am. D. 484); Dudley v. Bradshaw, 29 Ga. 17, 25; Temples v. Temples, 70 Ga. 480, 483; Glover v. Stamps, 73 Ga. 209 (54 Am. R. 870); Howell v. Ellsberry, 79 Ga. 475 (5 S. E. 96); Dodge v. Spiers, 85 Ga. 585 (11 S. E. 610).

The fact that the deed from May to Turner describes the land as containing forty acres, more or less, when the land within the boundaries of this deed amounts to ninety-two acres, will not defeat the claim of Sorrell to all the land within these boundaries, if he purchased the same from Turner and paid therefor. When land is conveyed by metes and bounds, whether there be more or less than the quantity named in the deed, the purchaser obtains the whole of it. Benton v. Horsley, 71 Ga. 619. So Turner obtained all the land within the boundaries given in the deed from May to him, and when Sorrell bought the tract from Turner, and paid him therefor, be obtained the whole of the tract, although it contained much more land than the quantity named in this deed. If the defendant could defeat an action of ejectment by showing a perfect equity, growing out of the payment of the purchase-money in full, he can certainly, in a court of equity, rely upon such perfect equity to defeat an action to enjoin him from interfering with the plaintiff, who proposes to sell the timber growing on the premises in dispute. So we can not agree with the contention of counsel for the plaintiff that a reversal is demanded upon the general grounds of the motion for a new trial.

4. The first and third grounds of the amendment to the motion for new trial can be considered together. In the first ground it is alleged that the court erred in requiring J. C. May, on cross-examination, to testify that at the time he sold the land to Turner he did not know what the timber thereon was worth, as there was no demand for it, as it could only be used for splitting rails and building houses; that in those dajrs a man never went into the swamp to get timber; that such timber was then practically worthless, but swamp timber is now in demand and is worth considerable money. The objection to the admission of this testimony was that it did not illustrate any issue in the case, the only issue being whether Sorrell or May owns this land. The court admitted this testimony to illustrate the intention of the parties and the circumstances when May sold to Turner, and latter sold to Sorrell.

In the third ground the plaintiff moved to rule out this testi-' mony upon the ground that it was irrelevant, and the court refused to rule it out, for the same reasons that he admitted it.

The defendant was seeking specific performance of his contract to purchase from Turner. Inadequacy of price may justify a court in refusing to decree specific performance. Civil Code, § 4637. It further throws light upon the question whether May sold Turner all the land north of Bear creek. Therefore the value of these swamp lands and the timber thereon at the time May sold to Turner, and Turner to Sorrell, was relevant and important.

5. In the second ground of the amended motion it is complained that the court erred in refusing to permit E. W. McCranie to testify that the negroes, John and Bonus Turner, had done nothing to any one to cause them to receive such treatment as they did when they were cut, shot, and run off from their home, “ in order to get their property.” In the fifth ground it is complained that the court erred in refusing to permit John Turner, a witness for the plaintiff, to testify that their presence in the community in which they lived was objectionable to the white people, and that parties came to their houses and, without any cause, cut, shot, and beat them and ran them off so as to get their property. The plaintiff alleges that this testimony was admissible to shed light on the conduct of Sorrell,'to disprove his claim of bona tides in acquiring this property, and to tend to show that he had no title to the same. It is claimed that this testimony was admissible to show that whatever paper title Sorrell had to the land in dispute was a forgery. Certainly the bad treatment of these negroes would not tend to establish forgery, even if Sorrell participated in these outrages; but there is no evidence in the record tending to show that such ill usage of these negroes was prepetrated by Sorrell. On the contrary, the evidence tends to acquit him of participating therein. This evidence was clearly irrelevant and inadmissible; and the court did not err in refusing to admit it.

6. In the fourth ground of the amendment to the' plaintiff’s motion for a new trial it is alleged that the court erred in permitting Sorrell to testify, that, two-years after he went into possession, he leased the pine trees for turpentine purposes to E. DeVane & Co., who cut, boxed, and worked them, and who chipped the boxes once a week during the entire turpentine season, for two years; that after DeVane & Co. worked the timber J. M. Ford back-boxed it some eight or ten years afterward, which was ten years after he bought the land; that he had made a written lease to DeVane & Co., and a written or printed lease to J. M. Ford, and that he signed the leases in the presence of witnesses and an officer. Counsel for the plaintiff moved to exclude all the testimony with respect to working the timber for turpentine purposes under written leases, as the leases would be the highest and best evidence. The court ruled that he would let the jury consider the testimony with respect to the working of the timber, but would exclude the contents of the leases. Error is assigned on this ruling, on the ground that its effect was to allow the jury to consider the testimony of the defendant that he had made and signed written leases, and that the timber had been worked under them. How far the jury should be limited in their consideration of evidence is not raised by objection to its admission. Moorefield v. Fid. Mut. Ins. Co., 135 Ga. 386 (69 S. E. 119).

7. The sixth, seventh, and eighth grounds of the amended motion can be considered together. In the sixth ground it is complained that the court erred in admitting in evidence the mortgage from Bonus and John Turner to J. T. Thrasher, dated September 4, 1886, properly witnessed and recorded on September 14, 1886, which embraced certain real estate therein described, with a transfer of said mortgage to Sorrell, dated April 6, 1893. The admission of this mortgage and transfer was objected to on the ground that the description of the land embraced therein was too vague and indefinite to create a lien upon it; and further, because Turner had testified that the mortgage had been paid prior to the time that Sorrell alleged that he bought the premises in dispute, there being no proof that the mortgage was due and owing at that time.

The court ruled that there was a recital in the mortgage that Bonus Turner owed the amount of money therein specified. It is complained that this ruling in admitting said paper amounted to an expression by the court of opinion as to a material issue in the ease, that is, that it showed that Turner owed, at the date of the trial, the amount of money recited in the mortgage. Sorrell contended that he bought the premises in dispute from Turner, that he was to pay the incumbrances thereon, including this mortgage, and that he had paid the amount of this mortgage in accordance with the said agreement between himself and Turner. Under this contention it was immaterial whether the description of the property embraced in this mortgage was sufficient or not. If Sorrell paid from the purchase-money of this land the amount of this mortgage, under said agreement, he was entitled to credit therefor, whether the mortgage was valid or invalid. The' ruling to the effect that the mortgage recited that Turner owed the amount to secure which it was given did not amount to an ex-' pression of opinion by the court. The mortgage did contain this recital, and there was no dispute as to the existence of the recital. The fact that Turner testified at the trial that this mortgage had been paid before Sorrell purchased this land was not a good objection to the admission of these instruments. It is not a good objection to the admission of relevant testimony that one of the litigants controverts such testimony.

In the seventh ground the plaintiff asserts that the court erred in admitting in evidence the note given by Bonus and John Turner to Thrasher, for the sum of $88.50, dated September 4, 1886, and due October 1, 1887, being for the purchase-money of a mule, with a transfer thereof to Sorrell. The objection to the admission of this evidence was that Turner testified that he owed nothing on said note at the time Sorrell claims to have purchased this land; that the note was barred by the statute of limitations, and could not be enforced against the rights of the plaintiff. This note was a part of the indebtedness of Turner which Sorrell claims that he was to pay under the agreement by which he bought this land from Turner. In view of this contention, the objections to its admission were without merit.

In the eighth ground it is complained that the court erred in admitting, “over proper objection,” a mortgage from John Turner to J. T. Sorrell, dated January 9, 1892, and duly recorded on February 1, 1892, to secure an indebtedness of $65, on Nov. 1, 1892, given on certain land therein described. The plaintiff objected to the admission of this instrument, on the ground that the description of the land embraced in this mortgage was insufficient to create a lien thereon, and for the further reason that John Turner is not a party to this suit, and Bonus Turner can not be bound by the contract of John Turner. • The court, in admitting this testimony, stated that there was testimony, he believed, that John Turner had an interest in the property though the legal title was in Bonus Turner, and that Sorrell bought under an agreement by which he was to pay this indebtedness. It is' complained that the court thus expressed an opinion, in the presence of the jury, upon a material part of the testimony in the case, and thus committed error prejudicial to the rights-of the plaintiff. Under the contention of the defendant he was to pay this debt from the purchase-money of the premises in dispute. The evidence in the case shows that John Turner paid to May half of the purchase-money of the land, embracing the premises in dispute, to which May made his deed to Bonus Turner; and that thus John Turner had an interest therein. There is no dispute in the evidence about this fact. The trial judge does not express an opinion when he states in the hearing of the jury a fact about which there is no dispute. Marshall v. Morris, 16 Ga. 368. For the above reasons the court did not err in admitting any of the documents above referred to, and did not express any opinion upon the facts which would require the grant of a new trial.

8. In the ninth ground it is complained that the court erred in permitting the defendant, Sorrell, to testify that he had made improvements on the cultivatable land since he had been in possession of it, putting up fences around it and stumping the same, which improvements cost some $400. This testimony was objected to for the reason that there was no evidence to show that this defendant had such a paper title, or possession thereunder, for a period sufficient to ripen a prescriptive title, because the defendant did not allege that he claimed title by prescription and had occupied this land for a period of twenty years; and because, if this contention were made, his title would extend no further than the enclosed boundaries of his possession, the undisputed evidence showing that the land in dispute is not cultivatable land, has never been fenced, and there has never been any actual possession of the land in dispute. The court ruled that he would allow the jury to say whether the plaintiff held title by possession. The objections to the admission of this testimony are not well taken. This testimony was clearly admissible upon the question of specific performance. As the defendant, Sorrell, claimed under a purchase of this land from Turner, who held the legal title thereto when he purchased, with full payment of the purchase-money, it was not necessary for him to show such paper title and possession thereunder as would ripen into prescriptive title. The defendant in his answer does set up title by prescription arising from adverse possession of the land in dispute for a period of twenty years. While the land in dispute was not cultivatable land, and had never been fenced, there is in the record evidence of such actual adverse possession as would authorize the finding in favor of this defendant upon his claim of prescriptive title by reason of twenty years adverse possession. So the court did not err in admitting this testimony.

9. In the tenth ground it is complained that the court erred in admitting in evidence the bond for title purporting to have been made by Bonus Turner to J. T. Sorrell, which was held by this court, when this case was here before, to be void for lack of sufficient description of the premises embraced therein. It is unnecessary to set out herein this bond in full. The objections urged to the admission of this document were: (1) that there was. no proof of its execution; (2) that under the undisputed evidence there had been erasures and changes made in the description therein, the word “ east ” had been erased and the word “west” had been written into it, that “it was originally written lot of land No. 389 and it has been changed to lot 389;” (3) because said bond is void because of lack of sufficient description of the property therein embraced, and could not be the basis of color of title; (4) because it was irrelevant. The court ruled that it was not admissible as color of title, but admitted it in connection with the other evidence in the case touching the contention of the defendant that he had purchased this property. The plaintiff claims that this ruling was harmful and prejudicial to his rights, especially in view of the decision of this court that this bond for title was a void instrument. The ruling was correct, and this evidence was properly admitted. There was proof by the subscribing officer that he prepared this bond, that the same was executed by the maker, and that he attested its execution. This witness does testify that certain changes had been made in this instrument, not in his handwriting. These changes are those mentioned in this ground of the motion for new trial. It does not appear from the evidence by whom and when these changes were made. The defendant testifies these changes were not made by him; and that the bond was in the same condition as it was when he received it. In his answer as amended, in the nature of a cross-action against the plaintiff and against his codefendant, Bonus Turner, the defendant, Sorrell, set forth this bond for title, and declared thereon as the basis of his claim of title, and as the basis of his cross-action for specific performance thereof by the maker. Being so declared on, and the execution of this contract not being denied under oath, proof of its execution and explanation of said alterations were not requisite to its introduction. Civil Code, §§ 4298, 5831. But, however this may be, there was sufficient proof of the execution of this bond, and of the fact that the alterations therein made were not made by the defendant, Sorrell, to admit the same in evidence. The fact that this court held, when this case was here before, that this bond for title was void for lack of sufficient description of the property therein embraced, did not render its admission illegal, in view of the amendment made by Sorrell, after said decision was made,.in which he sought to have said bond so reformed as to describe the property sold by Turner to him. This bond was the foundation of his action for reformation and specific performance; and as such was properly admitted by the court.

10. In the eleventh ground the plaintiff insists that the verdict of the jury and the decree of the court are contrary to the law and the evidence in this case, and without either to support them, for the reason that the defendant, Sorrell, has no title or bond for title to the land in dispute, because the evidence shows that he has never been in. the actual possession of the land in dispute, and has never exercised continuous, exclusive acts of ownership over the same, for a sufficient length of time to give him a prescriptive title, the evidence showing that the plaintiff went into possession of this land under a recorded deed on January 26, 1878, and has remained continuously and exclusively in the legal and peaceably acquired possession until May 29, 1916. What has been said in dealing with the first ground of the amendment to the motion for new trial disposes of this ground; and it is unnecessary to deal with it further.

11. In the twelfth ground it is alleged that the court erred in charging the jury that “ Actual possession of land is evidenced by enclosure, 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. The court instructs" you that actual adverse possession of lands by itself for 20 years shall give good title by prescription against every one, except the State or persons laboring under disabilities provided by law.” The error alleged is that the evidence is without conflict that the defendant, Sorrell, did not enclose the land in dispute, that his acts of ownership were such as to constitute only acts of trespass, that a period of as much as six months elapsed between the acts of possession upon the part of Sorrell, that, this defendant claiming prescriptive title by possession for a period of twenty years, nothing short of an actual enclosure of the land in dispute would ripen into a prescriptive title, and that there were neither pleadings nor evidence to authorize this charge. In this ground it is also urged that the court erred in charging the jury that “ The court instructs you, with respect to the other contention set up by the defendant in this case, that the law provides that specific performance of a parol contract as to land, and the land in controversy, will be decreed if the defendant admits the contract,— and with respect to this contention, the plaintiff would be the defendant, because, in so far as it relates to Mr. J. T. Sorrell, the burden is upon him, and he insists that he acquired title in this way,— or if it be so far executed by the party seeking relief, and at the instance or by the inducement of the other party, that if the contract be abandoned he can not be restored to his former position. Full payment alone, accepted by the vendor, or partial payment accompanied by possession, or possession alone with valuable improvements, if clearly proved in each case to be done with reference to the parol contract, will be sufficient part performance to justify a decree; and in this connection the court instructs you, as will appear from the pleadings in the case, the defendant Mr. J. T. Sorrell claims and contends that he bought this property from Bonus Turner, who is also a party to this suit.” The error alleged is: (1) that the court instructed the jury that if the defendant admits the contract of purchase, this would be sufficient to decree title in the defendant, and that in this particular case J. T. Sorrell would be the plaintiff and J. C. May the defendant,— there being no contention in the pleadings or the evidence that Sorrell purchased the land from May, or that any relation or contract was ever made or existed between them with .respect to the title to this land; (2) that the evidence shows that Sorrell was not in possession of this land; (3) that Bonus Turner denied that any sale of the land was ever made to Sorrell; either verbally or in writing, and that he had ever been paid the purchase-money; (4) that in this suit, Sorrell being a defendant and Bonus Turner being a defendant, Sorrell could not convert his answer into an equitable petition for specific performance against Bonus Turner, and have the title decreed into him out of Turner, which would defeat the title of the plaintiff; and (5) that Turner contends in his plea, and in his evidence, that Sorrell never purchased or acquired any deed or claim of title to the land in dispute, and that he did not convey or attempt to convey it to Sorrell.

We deal first with the errors alleged to exist in the first excerpt from the charge of the court. It is asserted that Sorrell did not enclose the land in dispute, and that his acts of ownership were such as to constitute only acts of trespass, which could not ripen into a prescriptive title. There was evidence from which the jury could find that Sorrell purchased the tract of land embracing the premises in dispute, on January 17, 1893; that he went into possession of the tract embracing the premises in dispute that year; that he cleared, fenced, and cultivated most of the uplands on this tract; that shortly after his purchase he leased all the pine trees on the tract suitable for turpentine purposes, to E. DeYane & Co.; that they turpentined all the trees upon the entire tract which were fit for turpentine purposes; that they cut, boxed, and chipped them; dipped the turpentine, and hauled the same off, for a period of three years; that thereafter Sorrell leased the pine trees for turpentine purposes to J. M. Ford, who worked the same some eight or ten years after DeYane & Co. had worked them; that Mack Ford worked the lands two years for turpentine purposes; that Sorrell cut a lot of timber off of the premises in dispute for sawmill purposes for the period of two years, and that May lived on the land lot of which the premises in dispute formed a part, only a short distance from these premises; that he must have known of the above acts of possession by Sorrell; that he actually saw Sorrell cutting timber on the premises in dispute for sawmill purposes; that on one occasion, when he saw Sorrell cutting timber on the swamp lands, he said to Sorrell that he thought this was his timber, when Sorrell replied that it was his, after which he never heard of any claim of the premises in dispute on the part of May until this action was instituted. The cultivation of a turpentine farm upon a tract of land is. such an occupancy as may be the basis of a prescriptive title to the land itself; and it is a question of fact depending upon the character of possession, the extent of the visible signs of occupancy and its continuance. Flannery v. Hightower, 97 Ga. 592 (25 S. E. 371). When we consider the above facts, and the further fact that the vendor of Sorrell, who held a deed from the plaintiff to a tract of land embracing the premises in dispute, which had been recorded, and under which such vendor had taken possession, which he held for a period of approximately ten years, which possession Sorrell could tack to his own, we can not say, as a matter of law, that the court erred in charging the jury upon the subject of prescriptive title ripening from twenty years5 possession. But he did not need prescriptive title to defeat the plaintiff. He bought when the legal paper title was in Turner, and he thus acquired a good title.

We deal next with the other portion of the charge, which is set out in this ground, and which deals with the subject of specific performance, and to which the plaintiff excepts. In this excerpt from the charge the court instructed the jury "that specific performance of a parol contract as to land . . will be decreed if the defendant admits the contract,—• and with respect to this contention, the plaintiff would be the defendant, because, in so far as it relates to Mr. J. T. Sorrell, the burden is upon him, and he insists that he acquired title in this way,— or if it be so far executed by the party seeking relief, and at the instance or by the inducement of the other party, that if the contract be abandoned he can not be restored to his former position. Full payment alone, accepted by the vendor, or partial payment accompanied by possession, or possession alone with valuable improvements, if clearly proved in each case to be done with reference to the parol contract, will be sufficient part performance to justify a decree.” The error alleged is that the court instructed the jury that, in respect to the matter of specific performance, J. T. Sorrell would be the plaintiff and J. C. May would be the defendant, when there is no contention in the pleadings or the evidence that Sorrell purchased the land from May. While” this charge is not entirely accurate, the inaccuracy was not sufficient to have misled the jury. In the cross-action filed by the defendant for specific performance, May, the plaintiff, became a defendant with Bonus Turner, and Sorrell, the defendant, became in such cross-action the plaintiff.

It is further insisted that this charge is erroneous because it instructed the jury that “ if the defendant admits the contract ” it will be sufficient to authorize specific performance, when the defendant, Bonus Turner, denied that he ever made any sale of the premises in dispute to Sorrell. There is enough in the testimony of Bonus Turner to authorize this charge; but if not, we do not think that it requires the grant of a new trial. The court gave in charge to the jury the whole of section 4634 of the Code, which embraces the language, “ if the defendant admits the contract.” All the rest of this section was clearly applicable to the ease. The jury could hardly have been misled by the court giving in charge the whole of this section.

It is further urged that this portion of the charge is erroneous, because Sorrell and Turner were both defendants, and Sorrell could not convert his answer into an equitable petition for specific performance against Turner, and have title decreed into him from Turner so as to defeat the title of the plaintiff. All the parties were before the court. On the application of the plaintiff the defendant Bonus Turner was made a party defendant for the purpose of reforming a deed from the plaintiff to him. After Turner was made a party, and after this court had decided that the bond from Turner to Sorrell was void for lack of sufficient description of the property therein embraced, Sorrell amended his answer, and by way of cross-petition asked to have this b'ond for title reformed, and asked for specific performance of the contract under which he alleged that he purchased this land from Turner. Equity seeks always to do complete justice; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of the suit, provided the court has jurisdiction for that purpose. Civil Code, § 4522.

12. In the thirteenth ground the plaintiff complains that the court erred in charging the jury that, if they believed from the evidence that Bonus Turner owned the property in controversy, and if Sorrell bought the property from Turner and paid him for the same, but failed to get a deed to the same, and if Sorrell took possession thereof as contended by him, then, as between Turner and Sorrell, Sorrell would be entitled to have a decree for specific performance against Turner, and would, as between the two, be entitled to a verdict declaring title in him. The first error alleged is that Bonus Turner disclaimed that he ever purchased, or intended to purchase, or otherwise acquired the land, or was ever in possession of the same, and for this reason the charge was contrary to the evidence and the pleadings. There is no merit in this objection to the charge. The fact that Turner, at the trial, disclaimed purchasing this land from May, would not defeat the rights of Sorrell, who purchased from Turner when the paper title to this land, in the shape of the valid recorded deed from May to Turner, was in the latter.

It is next urged that this charge was erroneous, because the suit was brought by May against Sorrell, to which Turner was after-wards made a party, and that Sorrell could not so amend his defense as to convert it into an equitable petition for specific performance as against Turner, the suit being in Colquitt county, and Bonus Turner being a resident of Lowndes county. Here the plaintiff undertakes to raise the question of the jurisdiction of the court of the person of the defendant, Bonus Turner. If the want of jurisdiction had been raised by Bonus Turner, this point would be a serious one (Clayton v. Stetson, 101 Ga. 634, 28 S. E. 983); but Turner did not raise any objection to the jurisdiction of Colquitt superior court of his person. On the contrary, he voluntarily came in and consented to be made a party, waiving process, service, and all further notice, in order that there might be a speedy trial. He filed an answer, without objecting to the jurisdiction of the court. He thus waived objection to the jurisdiction of the court. Civil Code, § 5654; Ansley Co. v. O’Byrne, 120 Ga. 618 (48 S. E. 228); Lightfoot v. Brower, 133 Ga. 766 (66 S. E. 1094). Certainly the plaintiff, who had Turner made a party defendant, can not complain that the court had no jurisdiction of his person.

13. In the fourteenth ground the plaintiff complains of a repetition of the charge complained of in the thirteenth ground; and he makes the same objections to this charge, in effect, as those set up against the charge in the thirteenth ground. AVhat has been said in dealing with the charge set out in the thirteenth ground is applicable to this ground.

14. In the fifteenth ground complaint is made that the court should have instructed the jury that the possession of Sorrell must have been in his own right, must not have originated in fraud, but was fairly and honestly claimed under a fair claim'of right; and that the possession of Sorrell would not extend any further than to where he had the land actually enclosed by a fence for a period of twenty years. If the court had been requested .in writing to give this charge to the jury, and had done so, it would have been ■ erroneous. Adverse possession of land is evidenced by enclosure; but this is not the only evidence of adverse possession. Cultivation, and any use or occupation of land which is so notorious as to attract the attention of every adverse clamant, and so exclusive as to prevent actual occupation by another, also constitutes adverse possession. Civil Code, § 4165.

15. In the sixteenth ground the plaintiff alleges that “ the whole charge of the court is- error, for the reason that it.was not applicable to, based upon, or authorized by the pleadings and the evidence in the case. This ground is too general to present any question for determination by this court, the whole charge not appearing to be erroneous. Atlanta & Birmingham Railway Co. v. Sumner, 134 Ga. 673 (68 S. E. 593).

Judgment affirmed.'

All the Justices concur, except

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Dissenting Opinion

Beck, P, J., and Atkinson, J.,

who dissent on the ground that the evidence was insufficient to show prescriptive title in the defendant on the basis of twenty years actual adverse possession; and that the judge erred in charging the jury upon that subject, which charge is duly excepted to in the motion for new trial.