Roe v. Doe ex dem. Morrison

| Ga. | Jun 15, 1860

By the Court.

Lumpkin, J.,

delivering the opinion.

This is an action of ejectment to recover lot number 227 of what was formerly Early now Calhoun county. The plaintiff tendered in evidence a grant from the State, and a regular chain of title down to himself. The defendant relied upon the Statute of Limitations.

She proved that Thomas Hunt went into possession of the land in dispute in 1842; that he built houses, cleared land and used the whole as is usual with the owners of land, claiming it as his own; that he occupied the premises, and made a crop upon it in 1843; that in 1844 Thomas Street took possession, but it does not appear under whom he claimed; that one Bagwell succeeded Street in 1845, but there is no evidence whether he claimed in his own right or as the tenant of Hunt or somebody else; that Hunt, the original settler, moved to the city of Macon in 1844, and sold the land to Wm. Sutton the 1st of October, 1845; that Bagwell then went out of possession and Sutton went in. From Sutton down there is a regular chain of title to Mrs. Hays. Hunt made a quit-claim deed only to Sutton, admitting at the time that the land did not belong to him, and that he had no title to it.

Counsel for Mrs. Hays excepts to the refusal of the Court to charge, as well as to the charge as given.

It is immaterial, however, how many or how great the errors were which the Court committed. The defendant’s statutory title utterly fails, inasmuch as she does not establish a continuous possession in Hunt or those claiming under him for seven years. It is but five years and a half from the date of Hunt’s deed to Sutton until the action was brought. So tacking on the possession of Bagwell for 1845 upon the ground assumed by counsel, to-wit: That by surrendering to Sutton he acknowledged himself a tenant of Hunt — a conclusion not warranted by the proof, still, it makes but six years and a half; for there is not a particle of proof that connects Street with either Hunt or Bagwell, and for this reason, to say nothing of the disclaimer of Hunt that he did not own the land when he made the quit-claim deed to Sutton in October, 1845, the defense must faj.1.

Had the Court ruled the law just as the defendant’s counsel claimed it to be, and the jury had found a verdict for the defendant, we should have felt constrained to set it aside and grant a new trial.