NOVEMBER 14, 1946.
Ejectment. Before Judge West. Clarke Superior Court. August 10, 1946.
Fred A. Gillen, Dorsey Davis, and James L. Hawkes, for plaintiff in error.
O. J. Tolnas, contra.
The trial court did not err in striking the defendant's amendment, which was insufficient to set up a legal defense to the plaintiffs' action; and the evidence being sufficient to support the verdict for the plaintiffs, and the special grounds of the motion for new trial being without merit, the trial court did not err in overruling the motion for new trial.
No. 15633. NOVEMBER 14, 1946.
This is an action in the common-law form of ejectment, instituted in 1935 by Miss Fannie L. Yerby and others against Mrs. C. T. Chandler, for the recovery of seventeen acres of land. As originally brought, the petition lays but a single demise in "Miss Fannie L. Yerby, Miss Ethel Yerby, and Mrs. G. W. Raney, heirs at law of B. H. Yerby." Two additional demises were added by amendment, but these are immaterial to a consideration of the case.
The defendant filed a plea of not guilty, and later by amendment averred: "1. That under Item No. 3 of the will of Burrell Yerby Sr., set up by the plaintiffs herein, the tract of land devised was owned and in the possession of Mary O. Yerby at the time of her death in the county. 2. That the said Mary O. Yerby died intestate on the ____ day of April, 1932, and there was no administration of her estate. 3. That on December 31, 1931, the said Mary O. Yerby made, executed, and delivered to the claimant herein the title to said premises, the language of said writing being as follows: `This agreement is to revoke all other agreements that I have made in past years. I have never made a will. I am sick helpless. I have been helpless since July 27th, 1931, and all my kin refuses to take me wait on me. Clovis Chandler's wife and daughters have waited on me, nursed me since July 27th. I want to pay them as much as I can for their kindness. Therefore, I agree to give them, Mamie and her two girls, all my household furnishings that I have on hand at present, all my personal belongings. I also pay tax on 13 acres of land, over near Helican Springs, joined by land of Kate Holiday et al. I also agree to give said land any other land that I may regain at my death. I do give bequeath all I own in this world to Mamie Chandler her daughters for nursing me.' 4. That said contract was performed and fully executed and claimant shows that from July 27, 1931, until April ____, 1932, claimant and her two daughters carefully nursed and waited upon the said Mary O. Yerby, who was then at the advanced age of 85 years, friendless and helpless, and suffering from a cancer."
The plaintiffs moved to strike the defendant's amendment, upon the ground that it set forth no legal defense. The motion was sustained, and to this ruling the defendant filed her exceptions pendente lite; and this ruling is made the basis of an assignment of error in the bill of exceptions.
On the trial, evidence was offered by the plaintiffs, tending to show that from 1900 to about 1910 the three plaintiffs and their mother lived upon, and were in possession of, the premises in dispute; that in about 1910 the mother of the plaintiffs died and the plaintiffs moved away from the premises, but that thereafter the plaintiffs rented the premises to tenants; that various tenants of the plaintiffs were in possession of the property from 1910 to 1933; that the plaintiffs paid the taxes on the property from 1900 until 1933; that the plaintiffs were in possession of the property, through a tenant, just prior to the defendant's entry into possession.
The defendant offered in evidence the contract heretofore set out, and testified in part as follows: "I Moved in the house with Miss Mary Ophelia Yerby in 1929. Why I moved in with her was, we wanted a place to live and went up there and rented a place. We rented it from Miss Fee [Mary Ophelia Yerby]. She was there alone when we went there. The land was a plot across the road that we rented. I learned about this eighteen acres of land involved in this case. I was down there nearly four years. That land was not part of the land rented from Miss Ophelia Yerby by us. It was lying out. There was a sorry house on it when we moved there. In 1930 I did not live on this place; I never lived there. We moved with Miss Fee and lived there until she died. . . It [the land in dispute] was not rented to anybody when we moved to Miss Fee's place; nobody was living there then. My husband put a tenant in the house after we took possession of it. We had a veteran, a soldier boy, and he wrote to Miss Ethel [one of the plaintiffs] and she rented it to him. . . Mr. Shippey was the tenant, the veteran, to whom my husband rented the place. He rented that seventeen acres to Mr. Shippey for Miss Ethel Yerby and those ladies up there [referring to the plaintiffs]. We thought it belonged to them at that time. At that time Mr. Chandler [the defendant's husband] was acting as agent for those ladies in renting this place to Mr. Shippey, and he went into possession. He did not stay in possession but a few months."
The defendant further testified that she had rented the property to various parties since 1932, and that since that date she had paid the taxes on the property and made various improvements on it.
A copy of a will, which is set forth in Yerbey v. Chandler, 194 Ga. 263 ( 21 S.E.2d 636), and there construed, was also introduced in evidence.
A verdict was returned for the plaintiffs. The defendant's motion for a new trial, as amended, was overruled; and the defendant excepted to that judgment.
1. When this case was previously before this court ( Yerbey v. Chandler, 194 Ga. 263), it was held that, under the will referred to in the defendant's amendment to her answer, the devises named in the will took a life estate only in the property devised. Under this ruling, which is the law of the case, Mary O. Yerby, under whom the defendant claims title to the land, could convey no greater interest in the property than she possessed, which was a life estate; and under the contract set forth in the amendment, the defendant acquired no interest in the land existing beyond the date of the death of Mary O. Yerby. Accordingly, the averments of the amendment were insufficient to set up a legal defense to the action. Since the amendment sought only to set up legal title in the defendant, and it was insufficient in this respect, the trial court did not err in striking the amendment on motion of the plaintiffs.
2. "A plaintiff in ejectment may recover the premises in dispute, upon his former possession alone, against one who subsequently acquires possession of the land by a mere entry and without any lawful right whatever. . . [Code, § 33-102.] Prior possession is some evidence of title, and is sufficient as a basis for recovery of possession as against a trespasser. Horton v. Murden, 117 Ga. 72 (6) ( 43 S.E. 786). Evidence of prior possession alone is sufficient to put the defendant on proof that he has a better title than that of the plaintiff." Terrell v. Gould, 168 Ga. 607 ( 148 S.E. 515), and cit. And in such a case "the defendant can not successfully defend by showing merely that the plaintiff did not in fact have title, or by setting up outstanding title in a third person, unless he connects himself with that title." Powell on Actions for Land, § 301. Nor is entry under a mere claim of right sufficient to defeat a prior possession, for a mere claim of right is not a "lawful right" of entry within the meaning of the Code, § 33-102. See Powell on Actions for Land, § 302.
Applying the foregoing rules, the evidence in this case authorized the verdict in favor of the plaintiffs. The plaintiffs, without connecting themselves with any previous title, offered evidence for the purpose of establishing prior possession and prescriptive title by twenty-years' adverse possession. Irrespective of whether the evidence was sufficient to establish a prescriptive title, the jury under the evidence was authorized to find that the plaintiffs had prior possession, through a tenant, from which they had been ousted by the defendant without any lawful right of entry. The general grounds of the motion for new trial are without merit.
3. Special ground 1 of the motion for new trial is a mere amplification of the general grounds, and is controlled by the ruling in division 2 of this opinion.
4. Special ground 2, complaining of the failure of the court to charge "specifically as to defendant's right to prevail . . where title is shown to be in third parties," is without merit because there was no written request for such a charge and the evidence did not warrant it.
5. Special ground 3, after setting forth the entire testimony of a witness, Percy Jones, recites that "movant objected to all the testimony of the witness with reference to his possession upon the ground that `he does not identify the person under whom he claimed to hold possession.'" Irrespective of whether portions of the evidence might have been subject to this objection, an examination of the testimony discloses that the entire testimony of the witness relative to possession was not subject to the objection. Accordingly, this ground of the motion is without merit.
6. In special grounds 4 and 5, complaint is made because the court admitted certain evidence, but both grounds are too incomplete for consideration because the objections urged upon the trial are not shown.
7. Special ground 6 complains of the admission in evidence of tax receipts in the names of Mary F. and Fannie Yerby for the years 1900 to 1933, inclusive. Proof was offered showing that these receipts represented payment of taxes by the plaintiffs on the property in dispute. Under the issues involved in this case, the court did not err in admitting the tax receipts in evidence. See Crider v. Woodward, 162 Ga. 743 (11) ( 135 S.E. 95); Holton v. Mercer, 195 Ga. 47 ( 23 S.E.2d 166).
Judgment affirmed. All the Justices concur.