108 Ga. 121 | Ga. | 1899
An action was brought by Ethridge against the Southern Railway Company, for damages alleged to have been occasioned through the negligence of the defendant in setting fire to and burning certain timber, fences, and a barn upon a lot of land which the petition alleged was the property of the plaintiff. There was a verdict in his favor, and the defendant filed a motion for a new trial, one ground of which was that the court improperly admitted in evidence a bond for title purporting to have been signed “Helen M. Wilson, by her attorney in fact, A. N. Wilson,” and to bind Mrs. Wilson to convey to Ethridge certain lands, including the lot above referred to, upon the payment by him of several promissory notes described in the instrument. The objections urged to the introduction of this paper were, “that it purported to be made by an attorney in fact, and was not accompanied by any power of attorney; that it had expired by its own limitation; and that it was not a deed and did not amount to a title.” The only foundation laid by the plaintiff for the introduction of this instrument was evidence showing that he had for more than seven years been in possession of the land therein described, under a contract between himself and A. N. Wilson, who had executed this bond for title ; that the price of all the lots mentioned therein was about $1,500, and that he had paid $900 of the entire purchase-money. In this connection; Ethridge himself testified: “I paid for this particular lot, because the
Counsel for Ethridge insisted, however, that this paper was, in connection with the proof of his possession thereunder for more than seven years, admissible as color of title. We do not think this proposition is sound. Manifestly, Ethridge was not claiming to hold under A. N. Wilson as his vendor, but was asserting title as the vendee of Mrs. Wilson. This being so, no prescription could run in his favor as against her so long as any part of the purchase-money remained unpaid. Hawkins v. Dearing, 93 Ga. 108. Upon the assumption that Mrs. Wilson holds the legal title to the land in question, the right of action for injury to the freehold would be in her, in the event she did not authorize or ratify the execution of the bond for title purporting to have been signed by her attorney in fact. Relatively to Ethridge, certainly the legal title is in her, unless he is in a position to set up against her a prescriptive title based upon the bond and possession thereunder. This, under the ruling in Hawkins’s case, he can not do; for even if the bond had been executed by Mrs. Wilson herself, it would not.
Judgment reversed.