164 Ga. 665 | Ga. | 1927
This is the second appearance of this case in this conrt. 155 Ga. 1 (116 S. E. 116). Upon the first trial, after evidence had been introduced by both parties, the court directed a verdict in favor of the defendants. This court reversed that judgment, on the ground that there were issues of fact to be passed upon by a jury. This was an action in ejectment brought by the plaintiffs, Mary E. Green et al., against S. S. and D. W. Rountree, executors of A. J. Rountree, to recover about 138 acres of land in four parcels, each parcel being described in the petition. The plaintiffs in error claim the land in controversy by prescription under color of title and thirty years possession. It appears from the record that on November 15, 1870, Benjamin I. Smith executed and delivered a deed to John H. Parker and J. M. Harris, trustee for his wife, Mary Harris, conveying, for a consideration of $7500, nine hundred and thirty-five acres of land in lots 484, 485, and 529 in the 12th district of Brooks County. On December 2, 1878, the judge of the superior court of Brooks County signed a decree dividing the above 935 acres of land between John H. Parker and J. M. Harris, trustee. This decree was rendered in a ease brought by J. M. Harris, trustee for Mary E. Harris and her children, against John H. Parker, praying for partition. John H. Parker acknowledged service on this petition, and agreed to the partition as made by the commissioners appointed to make the division, and agreed that the decree approving the division might be signed by the judge of the superior court in vacation, which was done. The evidence shows that the land sued for was a part of the land set apart to J. M. Harris as trustee for his wife, who at the time of the institution of the present suit was dead; and the plaintiffs are the heirs at law of Mary E. Harris, the wife of J. M. Harris. It also appears from the evidence that on January 18, 1881, John H. Parker executed and delivered a power of attorney to A. J. Rountree, the father of the plaintiffs in error, which was duly recorded in the clerk’s office of Brooks County on January 14, 1889. The power of attorney constituted A. J. Rountree the attorney for John H. Parker, and authorized him to sell, lease, or otherwise dispose of the land which was set aside to John H. Parker by the decree of the court in the partition proceeding. This power of attorney was in the possession of the heirs of A. J. Rountree, and was produced by them on the trial of the present
As stated above, the defendants claim the land in controversy by prescription under color of title. They offered, in support of their claim, a deed from Edward C. Wade, United States marshal, to A. J. Bountree, the father of the plaintiffs in error, dated May 25, 1885, conveying all the land described in the deed from Benjamin I. Smith to John H. Parker and J. M. Harris, trustee, etc., this deed being made by virtue of the sale of the land by U. S. marshal as the property of John H. Parker. Plaintiffs in error also introduced in evidence a certified copy of a petition brought by J. M. Harris, Inez Harris, and Mary E. Green, in the superior court of Brooks County, filed October 12, 1900, in which they alleged that there had been no division of the land, and that A. J. Bountree had purchased the interest of John H. Parker in the land at a United States marshal’s sale in Savannah, and that John.H. Parker and J. M. Harris, as trustee for his wife, had held the land as tenants in common; and prayed a division thereof. This petition for partition was filed after the death of Mary E. Harris, and after the death of J. M. Harris, and at a time when Mrs. Mary E. Green and Mrs. Inez Adams were both living and were over twenty-one years of age. So far as appears, J. M. Harris had no interest in
From what has been said above, and from the pleadings and evidence in the case, the jury were authorized to find in favor of the plaintiffs and against the defendants for the land in controversy. None of the other headnotes require elaboration.
Judgment affirmed.