178 Ga. 480 | Ga. | 1934
B. J. H.- DeLoach brought a complaint against Mrs. Wyman Bocker and Mrs. Alex. Woods, seeking recovery of a tract of five and one third acres of land located partly in Bulloch County and partly in Candler County, basing his claim of title on two deeds. One deed was executed by Z. T. DeLoach to the plaintiff in 1924, and one was from B. W. DeLoach to Z. T. DeLoach, executed in 1876. The defendants answered, denying the plaintiff’s claim of title, alleging that defendants and six named brothers and sisters, and their predecessors in title, had been in open, peaceable, adverse, and notorious possession of the land sued for, as part of a large tract owned by them, since January, 1877. On the trial the jury found for the plaintiff. A motion for new trial was overruled, and the defendants excepted.
The small intrinsic value of the land did not prevent a heroic contest in the court below, thus verifying the old adage of the lawyers as to land cases, that the less the land the bigger the fee, especially when a “principle” is involved. We shall deal first with the facts of the case, and later state the principles of law which in our opinion should control the judgment herein. Considering all the facts, it may as well be stated now;, because it will become per
The testimony of other witnesses in regard to this line, which we have marked X, was corroborative of that of Z. T. DeLoach. So we are of the opinion that the testimony in behalf of the plaintiff would have authorized the verdict. But the defendants (plaintiffs in error) contend that a verdict in favor of the defendants was demanded by the evidence. It would perhaps be unnecessary to refer to this contention, but for the assignments of error based on grounds
In the first five special grounds of the motion for new trial the plaintiffs in error complain of excerpts from the charge of the court, on the ground, not that they are not correct statements of law in the abstract, but that the only issue involved in the case under the pleadings was title to the land in controversy. They complain that the court charged the jury on title by prescription, acquiescence by agreement in an agreed boundary between coterminous landowners, and rules with relation to marks or monuments as showing established lines. The complaint is that these instructions were not authorized by the pleadings. In our view of the case the instructions given were warranted by the evidence and appropriate to it. It must be remembered that in Georgia replications have not been required for many years; and if, after the plaintiff had established a prima facie, case, the defendants saw proper to introduce evidence tending to show title by prescription and adverse possession, acquiescence in an agreed boundary line, etc., we are of the opinion that it would have been the right of the plaintiff to introduce evidence to disprove the case presented by the defendants. A very able discussion of this subject may be seen in Napier v.
In ground 9 of the motion for new trial the movants complain that the court sustained objections to a witness, Woods, being permitted to state what he understood about a brick mill being on the land in dispute. No comment was made by the judge, but he correctly sustained the objection, because the only question in the matter was what was the general reputation or understanding in the community. The exclusion of the testimony of Woods that he understood the brick mill was on the land in dispute could have done no harm, because it was not denied by any one that the brick mill was located on the land in dispute.
In ground 10 the complaint is that the court sustained an objection to the witness Woods stating a conversation he had with E. W. DeLoach, his father-in-law. The witness did not purport to say that he himself knew anything as to the matter then in question, and this made the alleged conversation mere hearsay, which was properly excluded.
In ground 12 movants complain that the court erred in sustaining an objection to testimony of the witness Eocker, as to who owned the land in dispute, and as to having leased it to Parrish and Hendrix, on the ground that it appeared that the leases were in writing, and that the writing was the highest and best evidence. However, the same evidence was permitted by the court and testified to by the witness Eocker when he was on redirect examination, the court holding at that time that evidence that the land had been leased by the predecessor in title of the defendant in error would be permitted; and in pursuance of this ruling the witness Eocker testified as follows: “I want to say further that this land is ours; that Woods and I leased it two years ago to Parrish & Hendrix. They never have taken possession of the land; the lessees, Parrish & Hendrix, did take possession. They turpentined it and worked it for two years. They worked it by permission of Mr. Alex. Woods and myself, acting as agents for our wives; and four years before that Bob DeLoach leased it to Hargraves.” The evidence adduced on the final examination of Eocker was very much more full than that offered the first time, when the objection was sustained. The testimony we have just quoted was before the jury, who had the right to ascribe to it such weight as in their judgment it was entitled to when considered in connection with all the evidence. There is no merit in this ground.
In ground 13 the plaintiffs in error complain that the court failed to give in charge sections 4168 and 4169 of the Code. We are of the opinion that the charge as delivered sufficiently presented the principle which the plaintiffs in error here contend should have been given. If fuller instructions had been desired, the plaintiffs in error should have timely presented a proper request in writing therefor. What has just been stated is applicable to ground 14.
Afte! considering all of the grounds of complaint presented as to