146 Ga. 490 | Ga. | 1917
The action was brought by Mrs. Car-rie Boberts against the Atlanta Cemetery Association and Mrs. M. Owens. Upon the conclusion of the evidence the court directed a verdict for the defendants.
1. One of the muniments of title relied upon by the plaintiff was a homestead alleged to have been set apart to J. A. Casey, and a sale thereunder by Casey and his wife by virtue of an order of the superior court authorizing the sale of the homestead property. Several objections were urged to the reception of the homestead in evidence, one of which was that the homestead was void because the date of the hearing was more than thirty days after the order of the ordinary setting the case for hearing. The court sustained this objection and excluded the homestead. It is provided by the Civil Code (1910), §§ 3381 et seep, that when an application has been filed, the court shall publish a notice that the applicant has applied for the setting apart and valuation of a homestead, and fix the time when he shall pass upon the same, and that the time fixed in the notice shall not be less than twenty days nor more than thirty days from the date of the order of the ordinary to the surveyor. The record discloses that the application was filed on November 17, 1888, and on that day the ordinary passed an order directed to the county surveyor-to enter upon the land of the applicant and lay off a homestead for him and his family of so much of the land as would not exceed in value a certain amount, and to make a plat thereof; and on the same day he passed an additional order setting the hearing for action on the
3. Inasmuch as the homestead was invalid, the application addressed to the superior court for leave to sell the homestead was irrelevant to any issue in the case.
3. The plaintiff offered in evidence a map made by a civil engineer, explanatory of a survey which he had testified he had made. One of the contentions in the case was that the deed under which the defendants claimed title covered only a part of the land embraced in the muniments of title relied upon by the plaintiff; and that even if the defendants’ title as to that part was superior to the plaintiff’s, nevertheless she was entitled to recover the rest of the premises in controversy, if she showed title to the same. The civil engineer testified that the plat which he made was correct. The evidential value of the map was not to establish the contentions of the parties respecting their claim of title to the land, but to show their application to the premises. The testimony of the civil engineer was of such a character as to bring the case within the rule that where a surveyor makes a survey and plat and testifies that the same are correct, the plat is admissible in evidence. Wooten v. Solomon, 139 Ga. 433 (77 S. E. 375).
5. The petition described the premises as “all that tract or parcel of land situated, lying, and being in land lot number two hundred and twenty-two (222) in the seventeenth (17th) district of originally Henry, now Fulton county, Georgia, commencing on the east side of the Marietta road (sometimes called the Atlanta and Marietta road, and now generally known as the Old Marietta road) at the north line of the property formerly known as the J. D.. Collins land, and running thence northerly along the east side of said toad five hundred (500) feet; thence east or nearly east four hundred and fifty (450) feet; thence southeasterly along the run of the branch about fifty (50) feet; thence east about three hundred and ninety-five (395) feet to the line of the property formerly owned by H. Franklin; thence south along the line of said Franklin land six hundred and fifty (650) feet to the line of the said property formerly known as -the J. D. Collins land; thence in a westerly direction along the line of- said Collins property eleven hundred (1100) feet to the point of beginning, containing a fraction over thirteen (13) acres.” The plaintiff submitted evidence tending to show that on April 12, 1895, John A. Casey and his wife conveyed to Mrs. Belle Simmons the tract of land described in the petition, and that he was in possession thereof at the time of his conveyance. On April 28, 1896, Mrs. Belle Simmons conveyed the land to Mrs. Carrie Oliver, who, on June 9, 1896, encumbered it with a security deed to W. F. Quillian. Quillian sued on his debt to judgment, and filed in the clerk’s office, for the purpose of levy and sale, a deed of reconveyance to Mrs. Oliver. The land was levied upon under an execution issued upon the judgment of Quillian against Mrs. Oliver, and was sold by the sheriff on October 3, 1899, and purchased by the plaintiff, and on the same day the sheriff executed a deed to the plaintiff. In all these conveyances the land is described substantially as in the petition.
.It is contended by the defendants in error that the evidence as to the description of any land claimed to be included in the plaintiff’s muniments of title, and not embraced in their own, is so indefinite that the jury was unable by the,verdict to locate it.’ We think the evidence sufficient to define the area of land covered by the plaintiff’s deed which is not embraced in the defendants’ muniments of title.
It is also argued that the plaintiff failed to show any title to the area of land covered by her muniments of title, which may not be embraced in the defendants’ deed. The husband of Mrs. Owens testified, in substance, that he represented his wife in the purchase of the land at sheriff’s sale; that after the sale, accompanied by the sheriff, he went on the land and exhibited the sheriff’s deed to J. A. Casey, who pointed out the lines to him; and that the sheriff’s deed under which the defendants claim title covers the locus of the suit. Both parties claiming that Casey had title to the locus of the suit, and that their respective claims of title derived from Casey cover the premises in controversy, the rule applies that where both parties claim under a common grantor or propositus, that common grantor or propositus will, for the purposes of the case, be treated as a true and original source of title, and the plaintiff may recover by showing legal title and right of entry as derived from that source. Powell on Actions for Land, §361.
Judgment reversed.