Tripp v. Fausett
94 Ga. 330
Ga.
1894
Check Treatment
Simmons, Justice.

This was an action for the recovery of a tract of land containing 202J acres, to which the plaintiff claimed title under the will of John C. Rawlins. No written title or color of title in the testator was shown, but the plaintiffs based their claim upon his prior possession of the land. The testimony showed that he was in actual possession of only twenty-five or thirty acres of the lot. To entitle the plaintiffs to recover the whole lot, it was necessary to show either a deed or other written color of title in the testator covering the whole lot, or that he had actual possession of the whole. If they were entitled to recover at all, under the evidence, they could only recover the quantity of land which was actually in the possession of the testator at the time of his death; but inasmuch as they failed to show what part of the lot was then in his possession and distinguish it from the part -which was not, the verdict should have been for the defendants.

2. It was error to allow the plaintiffs to prove that the executor had the whole lot appraised, and that he made certain returns to the ordinary concerning it. The appraisement and returns could not aid or enlarge the possession of the testator, it not being shown that the executor followed up the possession of the testator by continuous possession of the land himself, or that he turned it over to the tenant for life or otherwise administered it under the will. The will, however, was relevant and admissible, although it contained no description of the land but disposed of the testator’s estate as an entirety.

3. When the case was announced ready for trial, the defendant Tripp offered, in addition to his pleas of the general issue and prescription, an amendment in the *332nature of an equitable plea, in which he claimed that he had entered upon the land in good faith, believing he had a good title, and placed valuable improvements upon it and paid the taxes; and he prayed that if the title he held should prove invalid, the amounts so paid out should be allowed him. He did not state in the plea from whom he purchased the land, if he did purchase it from any one, nor whether the vendor had any title or color of title. The court did not err in striking this plea. One who enters upon land under a conveyance from one not in possession and, so far as appears, not having any color of title, enters and improves the premises at his peril; and the true owner is under no obligation to account to him for taxes paid, or for the cost of improvements over and above the mesne profits accruing from the land during the period of his occupation. Judgment reversed.