81 Ga. 387 | Ga. | 1889
W. W. Parker, as executor of William B. Parker, brought a suit to the November term, 1882, of Ware superior court, against the Waycross & Florida Railroad Company. In the declaration there were two counts, one in trover and the other trespass. In the former the plaintiff' sues the defendant in the usual form of such an action for a large quantity of pine-logs “ suitable and valuable for cross-ties and cribbing and bridge timbers.” In the latter count the plaintiff alleges that, on July 1st, 1880, he owned and was' in possession of lots of land numbers 256, 297, 298, 299, 300 and 301 in the 8th district of Ware county, and that the defendant, with force and arms, wrongfully entered upon said land and cut down and carried away twenty thousand trees of the value of one dollar each.
The case was referred, by consent to an auditor. The auditor made a report which was filed October 20th, 1883. Both parties excepted to the report. While these exceptions were pending, the court, at the spring term, 1885, allowed the plaintiff, over the defendant’s objection, to amend his declaration so as to strike therefrom in the description of the lots of land the number 256 and substitute the number 250. To this action of the court the defendant filed a bill of exceptions pendente lite. After this amendment had hcen made, the court, on plaintiff’s motion, and over the defendant’s objection, referred the ease back to the auditor. The defendant again filed a bill of exceptions pendente lite.
The plaintiff’s bill of exceptions states seven distinct propositions, announced by the judge in the opinion which resulted in the above judgment, and then follows these propositions with an assignment of error expressed thus: “To each and every of the decisions and rulings of said court from one to seven inclusive, herein above set forth, the plaintiff then and there excepted, now excepts and assigns the same, each and all, as error, and for ground of exception refers to the said exceptions as they are now of file with said report as part of the record of said case.” There was no exception taken to the final judgment rendered by the court against the defendant. "When the case came on to be heard in this court, the defendant in error moved to dismiss the plain-. tiff’s bill of exceptions on the ground that he did not ex
“ Upon the argument of the cause, all 'objection by defendants’ counsel to plaintiff’s title was abandoned, except as to lot 250, and as to this lot only is there any controversy as to title. Touching this lot, the auditor reports that no grant was introduced showing that the State had ever parted with its title, and no such paper appears in the auditor’s report of the evidence; and there is no evidence that the plaintiff ever was in possession of the land in question. In the absence of statutory title by prescription or of an actual possession, it is necessary for the plaintiff to exhibit a grant from the State in order to sustain his claim of title. Two of the plaintiff’s deeds to this land were attacked as forgeries, and the defendant submitted, to sustain the proposition, two certificates from the executive department, showing that the persons purporting to have signed these deeds as witnesses in the*392 official capacity of justice' of the peace were not in commission at the date of their execution. There is nothing in the record to rebut the presumption raised by these certificates; and upon this evidence, the auditor reported adversely to the plaintiff’s claim of title. This finding is unquestionably correct.”
There are certainly some purposes for which one’s right to land may be established without showing title derived from the State by a due succession of conveyances or supported by prescription. A plaintiff may, for instance, recover in ejectment as against a mere trespasser upon prior possession alone. Code, §3366; 63 Ga. 538; 54 Ga. 610; 53 Ga. 454; 11 Ga. 119; 5 Ga. 39. Again, it has been held that possession under a deed without more was sufficient to make out a prima facie case, so as to render it necessary for the defendant to show that his possession was not that of a trespasser. 53 Ga. 688. We know of no authority, however, for the. doctrine that one who merely has a deed from another and is not in possession, can either recover for trespasses committed on the land embraced in the deed or cast the burden of proof upon his adversary. The argument of the counsel for the plaintiff in error to this effect is not sustained by either of the cases cited by him. In the one in the 32 Ga. 656, it is simply held that a plaintiff', having a good prescriptive title to land, may recover in ejectment without going into the question whether any grant was ever issued. The other decision referred to in the same volume, p. 524, is, in substance, that where a grant has been issued by the State and is relied on in ejectment by the plaintiff', the defendant cannot attack it on the ground that it was procured by fraud, unless he shows that he had in the land some interest which was affected by the grant.
The plaintiff in this case could not recover except by showing that the land from which the cross-ties were taken was his, (40 Ga. 479,) and we think the decision
It was still further contended on the plaintiff’s behalf, that he was protected from such inquiry because he took the deeds without notice of the forgery. ■ A person holding a forged deed can rely upon the same for the purposes of title only where it is accompanied with actual adverse possession, commenced without notice and in good faith. Code, §2683.
3. Plaintiff introduced in evidence from his own possession a deed dated May 24, 1882, from his testator to the defendant, covering a strip of the disputed lot, which strip became a part of its right of way. The plaintiff maintains that this conveyance estops the defendant from denying the title of the plaintifl to so much of the lot as it embraces. The judge ruled to the contrary,
The fifth exception assigns as error the judgment of the court that the rights of the plaintiff are on a different footing as to the timbers just mentioned from what they are as to cross-ties, and that, whereas he may recover from defendant for the latter, he cannot for the former. Under the contract between the defendant and Mr. Walthour, the cross-ties as such were to be distributed at convenient points along its right of way, to be afterwards used by it in the construction of the track, while the other timbers were not to be defendant’s until they had become a pai't of its road-bed and so accepted. The distinction taken by the judge is one founded, therefore, in the evidence, and his decision as to its effect is right.
“1. Where he is a wilful trespasser, the full value of the property at the time and place of demand or suit brought, with no deduction for his labor and expense.
“2. Where he is an unintentional or mistaken trespasser or an innocent vendee from such trespasser, the value at the time of conversion, less the amount which he and his vendor have added to its value.
“3. Where he is a purchaser without notice of wrong from a wilful trespasser, the value at the time of such purchase.”
This opinion is well sustained by the reasoning of the court. Prom our own research, we find that the first proposition announced is supported by the following cases: Barton Coal Company vs. Cox, 39 Md. 1; Franklin Coal Company vs. McMillan, 49 Md. 549; Bennett vs. Thompson, 13 Ired. 146; Winchester vs. Craig, 33 Mich. 205; Nesbitt vs. St. Paul Lumber Company, 21 Minn. 491; Gray vs. Parker et al., 38 Mo. 160; Heard vs. James, 49 Miss. 239; Ellis vs. Wire, 33 Ind. 127; the second proposition by the following cases: Forsuth vs. Wells, 41 Penn. 291; The Barton Coal Company vs. Cox, 39 Md. 1; Franklin Coal Company vs. McMillan, 49 Md. 549; Bennett vs. Thompson, 13 Ired. 146: Win-
Upon the authorities just cited, we think the plaintiff was entitled to recover of the defendant the value of the cross-ties when delivered to it, and we direct that the judgment of the court below be modified to conform to this view.
Judgment affirmed, with direction.