Opinion
14596.
JULY 8, 1943.
Injunction. Before Judge Pratt. Banks superior court. April 10, 1943.
Hamilton Kimzey and Herbert B. Kimzey, for plaintiff in error.
J. B. G. Logan, contra.
1. The petition to enjoin an alleged continuous trespass on land sufficiently alleged title in the plaintiff, and acts by the defendants entitling the plaintiff to the relief prayed for, as against the general demurrer that the petition stated no cause of action or facts entitling the plaintiff to such equitable relief; since a good paper title with right of possession thereunder was set forth.
2. "Dower is the right of a wife to an estate for life in one third of the lands, according to valuation, including the dwelling-house (which is not to be valued in a town or city), of which the husband was seized and possessed at the time of his death, or to which the husband obtained title in right of his wife." Code, § 31-101. Accordingly, where the widow of an intestate elects to take dower, and it is assigned to her in certain land by commissioners, and their return is made the judgment of the court, pursuant to the Code, §§ 31-105 et seq., 31-201 et seq., such a judgment vests in the widow no more than a life-estate, so that on her death the title reverts under the rules of inheritance to the heirs at law of the deceased husband. Darnell v. Williams, 171 Ga. 651 (2, 3) ( 156 S.E. 584); 28 C. J. S. 66, 226, §§ 1, 114.
3. Seven-years adverse possession under color of title will not ripen into a prescriptive title larger than that expressed in the instrument. Where such color of title consists of an assignment of dower, conferring only a life-estate in the widow, as distinguished from other instruments transferring title to both the life-estate to one person and the remainder interest to another, adverse possession by the widow under her dower will not inure to the benefit of the heirs of the deceased husband, since there is no privity between the widow and such heirs. This is true for the reason that possession under a written claim of right refers to the title under which the claim is asserted, and the prescriptive title that ripens under such color of title takes to itself the incidents of estate and interest attaching to the color of title, and nothing more. Powell on Actions for Land, 463 § 352; Wallace v. Jones, 93 Ga. 419 (4) ( 21 S.E. 89) ; Bazemore v. Davis, 69 Ga. 745 (2). As to privity, see 1 Am. Jur. 880, § 152; 2 C. J. S. 686, 687, §§ 129, a, b. Accordingly, in a suit by the daughter of an intestate, claiming a one-tenth interest as his heir, and the remaining interest under deeds from the other heirs, to enjoin an alleged continuous trespass by the defendants, under their claim of title by deeds and prescription adverse to the plaintiffs' intestate, his widow, and his heirs, it was error to charge the jury, in effect, that the controlling question was whether the widow had been in adverse possession under her dower for as much as seven years. The ruling in Peters v. West, 70 Ga. 343 (3), does not run contrary to the principle just stated. There no question of adverse prescriptive title in the widow, inuring to the benefit of her husband's heirs, was involved. The sole question was whether the heirs of the husband and father had shown a presumptive title from the father's possession; and the proof with reference to the widow's possession under her dower was relevant, not as asserting a prescriptive title under her, but as showing that the heirs' right of possession under their father had not been disturbed. See, in this connection, Brown v. Colson, 41 Ga. 42.
4. It was also error to refuse a new trial on the additional ground that the plaintiff failed to prove, as alleged in the chain of written title in her petition, deeds from three of the ten heirs of her intestate father, Roscoe Scales, Mrs. H. L. Turner, and Mrs. W. M. Barrett.
5. No question arises as to whether the decree was erroneous in going beyond the verdict, since there was no exception to the decree as rendered, and it is not permissible to raise such a question by a motion for new trial. Pittman v. Pittman, 196 Ga. 397 ( 26 S.E.2d 764), and cit.
6. Under the instruments in evidence, the defendants had conveyed to the plaintiff a 2/10 interest in land described in their deed as the "dower" land; and the judge did not err in charging, in effect, that the defendants did not in any event have more than an 8/10 interest in the disputed tract. This is true because parol testimony will not be permitted to vary a judgment and return of dower by showing an oral understanding between the commissioners, the administrator, and heirs of the decedent, that it was intended to exclude certain land shown by the return to be inside the dower. See an analogous case as to a year's support, Blackwell v. Partridge, 156 Ga. 119 (2, 3), 128 ( 118 S.E. 739). Also Wells v. Dillard, 93 Ga. 682, 685 ( 20 S.E. 263).
7. The preceding rulings are controlling as to every question submitted to and passed upon by the court at the trial; and therefore other grounds of the motion for new trial will not be considered.
Judgment reversed. All the Justices concur.
No. 14596. JULY 8, 1943.
Mrs. M. E. Bellamy filed a petition to enjoin Mrs. M. H. Scales, Mrs. Flonnie Scales Wilson and husband, Lewis Wilson, from their alleged continuous trespass on part of a described tract of 152 acres, "known and designated as the Mrs. D. F. Scales dower," according to a recorded plat, which was referred to for the purpose of identifying the property. General relief was also prayed. In her amended petition the plaintiff claimed by inheritance a one-tenth interest in the land, as one of ten children of D. F. Scales, who died in 1923, and as grantee under deeds from the other heirs, as follows: from Paul W. Scales a 4/10 interest, from Peyton Scales a 1/10 interest, from Mrs. M. K. Loudermilk a 1/10 interest, from Mrs. A. M. Wells a 1/10 interest; and from the defendant, Mrs. M. H. Scales (widow of plaintiff's brother, M. H. Scales), who died in 1937, a 2/10 "undivided interest in the dower" land, which 2/10 undivided interest in such dower land had been set apart as a year's support to the defendants, Mrs. M. H. Scales and her minor daughter, Flonnie Scales Wilson. To show title in the plaintiff's grantor, Paul W. Scales, she pleaded deeds to him from other heirs: one from Mrs. H. L. Turner and one from Mrs. L. O. Evans, each conveying an undivided interest in the dower land. The plaintiff also pleaded a deed from another heir, Mrs. W. H. Barrett, to plaintiff's grantor, Peyton Scales, conveying an undivided 1/10; and a deed from Roscoe Scales to P. N. Scales of a 1/10. The plaintiff further alleged, as part of her abstract of written title: a deed, dated and unrecorded, from W. B. Chambers to plaintiff's father, D. F. Scales, conveying the disputed tract; a deed made in 1899, from J. R. Chambers to W. B. Chambers, conveying this tract; a deed in 1874 from F. A. L. and Frances M. Miller to J. R. Chambers; and a deed in 1868 from John Sheridan to Frances M. Miller.
To the petition as amended the defendants filed general demurrers on the grounds that it stated no cause of action, and that the averments of fact did not entitle the plaintiff to the relief prayed. The defendants assign error on their exceptions pendente lite to the overruling of these demurrers.
In their answer the defendants denied generally the averments of the petition; and set up a claim of title, independently of any interest inherited by M. H. Scales from his father, D. F. Scales, and based their title on a deed, dated in 1915, from J. R. Chambers to M. H. Scales, conveying the two acres claimed by the defendants under M. H. Scales, who died in 1937; and the deed, made in 1874, from F. A. L. and Frances Miller, under which the plaintiff also claimed as to the two acres in dispute. The defendants also set up a prescriptive title under their deeds and adverse possession of the two acres by M. H. Scales and his predecessors in title for more than fifty years. The defendants denied that the two acres formed any part of the dower tract. They prayed that title to this land be confirmed in Mrs. M. H. Scales and Mrs. Flonnie Scales Wilson; that the plaintiff be enjoined from interfering with their possession; and for other relief. There was no demurrer to the answer.
In the trial the judge submitted to the jury certain questions, which with the answers of the jury are as follows: "Did Mrs. Scales go into possession of the two-acre tract of land in dispute, under her dower, and did she continue in adverse possession as against M. H. Scales during all of their lifetime, so long as they both lived and for seven years? Answer: Yes. If you answer that question `Yes,' you need not answer any other question. If you answer that question `No,' then answer this question: Did [plaintiff] and those under whom she claims have adverse possession of the two-acre tract of land involved as much as seven years prior to the entrance of the defendants in this case on the lands involved? To this question there was no answer.
On this verdict a decree was entered that the defendants be enjoined from entering upon or interfering with the plaintiff's possession of the land described in the petition. There was no exception to this decree.
The defendants moved for a new trial on the general grounds, and on twenty-four grounds of exception to charges to the jury, and to refusal of certain written requests to charge. One ground of the motion was that the defendant, Mrs. Flonnie Scales Wilson, was a minor; and that she was unrepresented in the suit by next friend, legal guardian, or guardian ad litem. The judge granted a new trial to the minor on the ground of her minority, but refused a new trial as to the other two defendants. These two excepted to this refusal on all other grounds of their motion, and on the ground that a new trial could not be granted as to one of the defendants without granting it as to the others, since all three defendants were sued as joint trespassers.
Grounds of the motion excepted to charges that the plaintiff had a good paper title in the two acres in dispute, by virtue of a deed from the defendants, conveying to her a 2/10 interest in the "dower land," and that the issues as to title related to only the remaining 8/10 interest in the two acres in dispute. Under the evidence the defendants' deed to the plaintiff described a 2/10 "undivided interest in the dower" land. The plaintiff offered in evidence a plat showing the entire 152 acres of dower land, without any exception of the two acres, as set apart by the commissioners to the widow, Mrs. D. F. Scales, and undisputed oral testimony that the two acres was inside the dower land. The defendants offered oral testimony, which was contradicted by evidence for the plaintiff, that when the dower was assigned, it was orally understood between the administrator, the heirs, and the commissioners that the dower tract was not to include the two acres.
As to other evidence, the plaintiff introduced deeds as pleaded, except that she failed to prove the pleaded deeds from three of the heirs; from Roscoe Scales, Mrs. H. L. Turner, and Mrs. W. M. Barrett, as to the omission of which the defendants excepted. The defendants introduced in evidence their pleaded deeds.
On the question of prescriptive title, there was testimony for the plaintiff as to the previous possession and cultivation of all the dower tract, including the two acres, by the ancestor, D. F. Scales, and his widow, to whom the 152 acres was assigned as a dower. There was testimony for the defendants that their predecessor in title, M. H. Scales, and his predecessor in title had cultivated and been in actual adverse possession of the two acres until his death in 1937, and before the death of his father in 1923, and while the widow had her dower until her death in 1934.