Stewart v. Jones

139 Ga. 68 | Ga. | 1912

Beck, J.

We are of the opinion that the verdict in this case was not authorized by the evidence. The undisputed testimony shows that the land which the plaintiffs in the court below recovered under the verdict of the jury was, together with other property, duly set apart to the defendant, Mrs. Stewart, as a year’s support, and that under the return of the appraisers so setting it apart she entered into possession of it and continued in possession openly, notoriously, peaceably, and adversely for a period of seven years. If, because of a defect in her husband’s title to this property, the return of the appraisers duly admitted to record did not vest title in Mrs. Stewart, the return was certainly color of title; and all the other elements of a good prescriptive title having been shown to exist, she acquired a prescriptive title to the land after the lapse of the statutory period of seven years. The contention that the possession of Mrs. Stewart’s husband, who had held the land for several years prior to his death under a quitclaim deed, was not bona fide, on the ground that he had knowledge of an outstanding-title, and that this would operate to defeat Mrs. Stewart’s prescriptive title, is not sound, in the absence of any proof that Stewart had communicated to his wife the fact of his knowledge of the defect in bis title, so as to put her on notice that he was not holding the land in good faith; and the jury would not be authorized to presume, merely from the fact of the marriage relation, that the husband had made a communication to the wife of facts which would tend to show that his possession of certain property was not in good faith.

Nor will the fact that the return of the appraisers, setting apart a year’s support, allowed the widow as a year’s support an amount which seems to be excessive, the condition of the estate as to solvency and insolvency being considered, be sufficient to authorize the jury to treat the return of the appraisers as null and void on the ground that it was fraudulent, in a collateral attack upon the return seven years after it was duly admitted to record.

The judge by his charge eliminated two of the plaintiffs as parties to the suit. Whether these two plaintiffs had any right or title to any part of the land in question is not considered, there being no exception to that part of the judge’s charge which removed them as parties litigant from the case. The only question made for decision under the record is whether or not Mrs. Stewart, the defendant in the court below, had a prescriptive title as against the plaintiffs, Mrs. Jones and Miss Eosser. As indicated above, the court is of the opinion that the prescriptive title of the defendant in the court below was complete under the evidence adduced on the trial, and the jury were not authorized by the evidence to render a verdict adverse to her.

Judgment reversed.

All the Justices concur.