JUNE 6, 1946.
Complaint for land. Before Judge Knox. Wayne Superior Court. February 22, 1946.
Douglas F. Thomas and J. B. Moore, for plaintiff.
W. Glenn Thomas and Joe Thomas Jr., for defendant.
1. While it was error to admit in evidence a letter from a stranger to the suit, over the objection that it was irrelevant, prejudicial, hurtful, and hearsay, the error was harmless, and therefore will not require a reversal, for the reason that other witnesses were allowed to testify without objection to substantially all that was stated in the letter.
2. A request to charge the jury must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.
( a) The requests dealt with in the corresponding division of the opinion failed to meet these requirements, and the court did not err in refusing them.
3. The charge of the court dealing with prescription, adverse possession, and color of title, set forth in the third division of the opinion, was not erroneous for any reason assigned.
4. In a statutory suit to recover land, the evidence for the plaintiff showing that he purchased the property in good faith in 1927, at which time he entered possession and continuously worked the pine trees for turpentine purposes until 1940, and the evidence for the defendant merely showing that the plaintiff knew of an outstanding title before the defendant acquired her deed in 1939, the verdict for the defendant is without evidence to support it, and the trial judge erred in not granting a new trial.
No. 15482. JUNE 6, 1946.
This is a suit to recover land, filed in Wayne Superior Court by W. C. Rogers against Agnes Manning, and alleging substantially the following: The defendant was in possession of a described tract of land, known as lot number 56 in the Third Land District of Wayne County, to which the petitioner claimed title. The defendant had received the profits from said land of the value of $200 per year since January 1, 1940, and refused to deliver possession or pay the profits to the petitioner. From February 7, 1927, to January 1, 1940, the petitioner held the land in complete adverse possession, which was evidenced by cultivating the trees, preparing fire breaks, raking the pine trees, cupping the pine trees continuously, and otherwise working the trees on the land for turpentine purposes. The petitioner prayed for process, service, and a recovery of the property with mesne profits. Attached to the petition was an abstract of title, showing four conveyances: the first from Southeast Georgia Land Company to Glynn Realty Company, dated January 25, 1926, and the last from Brunswick Peninsula Company to the plaintiff, dated February 7, 1927.
The defendant answered, denying that the value of the land was $200 per year, but admitting that she refused to deliver possession to the petitioner. Further answering, the defendant averred that Southeast Georgia Land Company, one of the grantors under which the petitioner claimed, conveyed the property by warranty deed to William Baywell on December 17, 1913; and that William Baywell conveyed the land to her by warranty deed on June 28, 1939.
So far as appears, there was no demurrer to either pleading.
C. M. Johnson testified for the plaintiff in part: He was employed by the plaintiff in 1928, and rode the woods on the land in controversy that year. He terminated his employment in September, 1932. During 1928 and 1929 streaks were put on the trees regularly. The chipping began early in the spring, and the scrape was usually taken off in October. The pine trees were raked in the winter. Someone worked in the woods every week.
The plaintiff testified: He did not know that there was any outstanding title before he bought the land. At the time he bought it, he got an attorney's opinion as to the soundness of the title. His attorneys in Brunswick who abstracted the title and wrote the deed said that the title was good. No one at any time from February 7, 1927, the date of the purchase, until 1940, objected to his using the property, which was occupied under a chain of title. The land is worth $7.20 per acre, and there are from 250 to 260 acres in the tract. Since the defendant took charge of the land, her husband has worked the timber. There was an agreement that neither party was to work it, but the defendant's husband did not stick to the agreement. The yearly rental value of the land is from $150 to $200 per year. The land is worth about $1500, and the plaintiff paid $7.12 per acre for his land. At the time of his purchase he bought approximately 3857 acres from Brunswick Peninsula Company. He never knew William Baywell, but in 1940 he learned that the defendant had bought the land. He told her and her husband that he owned the property, and tried to get an arbitration. Nothing was said about buying them out, but he told the defendant that he would rather give her what he would have to pay out in court to clear up the title. He worked the trees for turpentine purposes consecutively from 1927 to 1939 and until the defendant's husband ran his hands off of the land.
Emory Dean testified: He leased the timber from the plaintiff in 1934, and during the time he worked it no one objected to his exercising the lease. Brunswick Peninsula Company took over the lease the next year and worked the timber for the next six years. At the time he went there, there was evidence that the trees had been worked for at least six years. A copy of the lease to Emory Dean, dated March 29, 1934, was introduced in evidence without objection.
Arnis Rogers, a nephew of the plaintiff, testified: He worked on the land, looking after stock, but was not connected with the turpentine except from 1928 to 1934, and when Emory Dean leased it he worked for him. The witness looked after the turpentine, and after the crew of men who recupped it. His work began the first part of 1935. The work of the crew under him was pretty regular. They put a streak on the boxes every week, dipped it out sometime in November and began raking boxes after November. The operation was continuous while he was there. Emory Dean worked the trees from 1928 to 1934, during all of which time there was no objection by anyone.
C. B. Jones testified: he began working on the land in 1937 and quit in 1939. His work consisted of producing turpentine, chipping, dipping, and raking pine trees, which activities were every month in the year.
Vernon Rogers, a nephew of the plaintiff, testified: The plaintiff operated on the land in 1927. Someone else began in 1934. During the time the plaintiff worked the land, the witness plowed fire lines all over it and worked the timber for turpentine purposes. Emory Dean looked after it in 1934 and 1935, after which Mr. Page of Brunswick Peninsula Company bought the lease. Page, C. B. Jones, Emory Dean, and the witness worked it from 1927 until the last of 1939.
Dennis Lane testified: He hauled logs on the land for the plaintiff in 1930, and observed that the turpentine was being worked. No one interfered with him.
The defendant testified: Her husband made the land trade for her in June, 1939, with William Baywell, who resided in Indiana, and got a deed from him. After the purchase of the land, the plaintiff offered to give her $50 on the trade or to give her the east side of lot 56. She told him that, if he would give her both sides of the railroad, she would trade. He didn't say anything to that. The plaintiff mentioned William Baywell's name and asked whom she bought the land from, and she told him that she bought it from William Baywell. The plaintiff said that William Baywell owned it, and offered her $50 for her trade, but he did not go through with it. That was the only time she talked with the plaintiff about the land. Her husband did the trading for her. She got in touch with William Baywell by letter. It is not true that she and her husband found the land title in the records and got in touch with Baywell. Her husband and Jim Dean told her about it. She paid $100 for the land. She lived about a mile from the property, and had been on the land before she bought it. She saw turpentine work going on, but did not ask the people whom they were working for. Mr. Jones said he was working it for the Brunswick Peninsula Company under a lease. She did not ask the plaintiff if he owned the land before she bought it. There were cups hanging on the land and streaks on the faces when she bought it. The plaintiff talked with her in 1940 about the land. He did not offer to arbitrate.
J. D. Manning testified for the defendant: The plaintiff told him that William Baywell owned a piece of land, but would not sell it to the plaintiff. That was before the defendant bought it. The plaintiff said that he had leased the timber from William Baywell. The above conversation was one or two years before the defendant bought the land.
R. L. Harris testified: He took office as Tax Commissioner of Wayne County in 1933, and William Baywell made returns on land in lot 56 for 12 years or more. Someone paid the taxes on it from the time he took office until 1939. The witness did not recall whether or not the plaintiff had been paying taxes on lot 56. He paid on some acreage in lot 56.
Lewis Manning, the husband of the defendant, testified: He bought some land from William Baywell, who lived in Indiana when the witness got the deed from him; and has heard that Baywell is dead. Raymond Pierce wrote the deed. Pierce told the witness that he had good title. He had known the plaintiff all his life and had worked for him. The plaintiff told him that William Baywell owned the land. Before and after he purchased the land for his wife, the plaintiff offered the defendant $50 on a trade. After the witness bought the land he went into possession. At the time he bought it he thought that the plaintiff and others holding under him had leased it. The plaintiff said that he had leased it to Jones and Hunt. The witness knew that they were in actual possession. He asked the plaintiff before he bought it if it was the plaintiff's land, and he told the witness that it was William Baywell's. The plaintiff did not call his attention to any of these deeds when he was searching the records.
The plaintiff, on being recalled, denied that he ever stated that he had leased the timber from William Baywell, and also denied any knowledge of the latter's claim. When informed of the claim, he tried to get the defendant's husband to arbitrate it, and told him that, if William Baywell had been the owner, he did not know anything about it, and that he, the plaintiff, had been in possession over twenty years.
The deeds set forth in the pleadings were admitted in evidence without objection. A letter from Fred Baywell to one of the attorneys of the defendant was admitted over objection.
The jury returned a verdict for the defendant. The plaintiff's amended motion for a new trial was overruled, and the case comes to this court for review upon his exceptions to that judgment.
1. The first special ground of the motion for new trial complains of the admission in evidence of a letter, dated April 12, 1945, from Fred Baywell in Boonville, Indiana, to one of the attorneys for the defendant, which stated the following: "Mr. William Baywell stayed with me a number of years before his death. He has been dead over two years. I remember Mr. Baywell telling me, . . about the land he purchased in 1913 from S.E. Georgia Land Company in Wayne County Georgia. He paid taxes every year, until Mrs. Manning bought the land in 1939. The only correspondence he has was from the Tax Commissioner of Wayne County and Mrs. Manning that I know of. I know that he never sold the land to no one else but Mrs. Manning. He sent her the deed . . he got from the S.E. Georgia Land Company."
The letter was inadmissible when offered in evidence, over the objection of the plaintiff that it was irrelevant, prejudicial, hurtful, and hearsay. Clarke v. Alexander, 71 Ga. 500 (5); Hickson v. Bryan, 75 Ga. 392; Gorham v. Montfort, 137 Ga. 134 ( 72 S.E. 893); Aripeka Saw Mills v. Georgia Supply Co., 143 Ga. 210 ( 84 S.E. 455); Carrie v. Carnes, 145 Ga. 184 (6) ( 88 S.E. 949); Owen v. Groves, 145 Ga. 287 (6) ( 88 S.E. 964); Peters v. Adcock, 196 Ga. 118 (5) ( 26 S.E.2d 342). However, the illegal admission of the letter in evidence was harmless and therefore will not require a reversal, for the reason that other witnesses were allowed to testify without objection to substantially everything that was stated in the letter. Compare McCrory v. Grandy, 92 Ga. 319 (4) ( 18 S.E. 65); Waters v. Wells, 155 Ga. 439 (4) ( 117 S.E. 322); Lewis v. State, 196 Ga. 755, 759 ( 27 S.E.2d 659); Daughtry v. Savannah c. Ry. Co., 1 Ga. App. 393 (3) ( 58 S.E. 230); Christopher v. Georgian Co., 22 Ga. App. 707 (2) ( 97 S.E. 97). On the question as to whether hearsay as to death is admissible, see Imboden v. Etowah c. Mining Co., 70 Ga. 86 (9); Mobley v. Baxter, 143 Ga. 565 ( 85 S.E. 859).
2. Special grounds 2 to 7 inclusive except to the refusal of timely written requests to charge. "A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial. Etheridge v. Hobbs, 77 Ga. 531." Macon, Dublin Savannah R. Co. v. Joyner, 129 Ga. 683 (5) ( 59 S.E. 902); Lewis v. State, 196 Ga. 755 (3), 760 ( 27 S.E.2d 659). "A party can not complain that the court erred in failing to deliver in specified language a charge, when such charge, if given in the language specified, would not be an accurate statement of the law." McElwaney v. MacDiarmid, 131 Ga. 97 (5) ( 62 S.E. 20); Hardeman v. Ellis, 162 Ga. 664, 667 (26) ( 135 S.E. 195); Armstrong v. State, 181 Ga. 538 (4) ( 183 S.E. 67); Smithwick v. State, 199 Ga. 292 (4) ( 34 S.E.2d 28). But, in the trial of a case, a party may make a written request to charge the jury at any time before the jury retire to consider their verdict; and if the charge requested in writing is on a material point and is pertinent, it should be given in the language requested, and a refusal to give it in the language requested is cause for the grant of a new trial. Code, §§ 70-207, 81-1101; Wooten v. Morris, 175 Ga. 290, 293 (4) ( 165 S.E. 626).
Ground 2 complains of the refusal to charge: "A prescriptive title which meets the requirements prescribed by the Code will not be defeated by the fact that the grantor, through whom the claimants of prescription held, had made a deed prior to that under which they claimed, even though it was of record." While this request is taken from decisions of this court in Hunt v. Pond, 67 Ga. 578 (6); Baxter v. Phillips, 150 Ga. 498, 503 ( 104 S.E. 196), the language, "a prescriptive title which meets the requirements prescribed by the Code," without setting forth in such request what the requirements of the Code were, would have been an incomplete statement of the law.
The requested charge in ground 3 was: "Possession of land is notice of whatever right or title the occupant has. Possession by the husband with the wife is presumptively his possession but may be rebutted. Actual possession is notice to the world of the right or title of the occupant." The first two sentences of this request are in the language of the Code, § 85-408, and the last sentence is apparently taken from Simpson v. Ray, 180 Ga. 395 (2) ( 178 S.E. 726). The second sentence, "Possession by the husband with the wife is presumptively his possession, but it may be rebutted," was not properly adjusted to the facts of the instant case, where the plaintiff claimed that his possession was notice to the defendant, who was a woman, and there was no evidence showing that the plaintiff's wife had ever been in possession of the land in question. The assignment of error is to the refusal to give the whole of the above request; and since a portion of the charge was not applicable to this case, the court committed no error in refusing the request. Compare Etheridge v. Hobbs, 77 Ga. 531, 534 (4) ( 3 S.E. 251).
The request to charge in ground 4 was: "The payment of taxes is not enough to constitute any adverse possession, neither will the payment of taxes prevent or obstruct adverse possession in another party, who has actual adverse possession of land." This request appears to have been taken from language in Mitchell v. Gunter, 170 Ga. 135, 146 ( 152 S.E. 466), where it was held that the trial court did not err in charging "that to give in and pay taxes on property is not evidence itself of title to the property, but that it is a circumstance to show possession." While the trial judge in his general charge did not specifically refer to the fact that payment of taxes is not of itself evidence of title, this principle was necessarily included in the enumeration of the things which if the jury found to be true they were instructed to find in favor of the plaintiff. See, in this connection, Chamblee v. Johnson, ante, 838.
The request to charge in ground 5 was: "Adverse possession of lands under written evidence of title, for seven years, shall give like title by prescription, but if such written title is forged or fraudulent, and notice thereof is brought home to the claimant, before or at the time of the commencement of his possession, no prescription shall be based thereon." This request is in the language of the Code, § 85-407. The words, "but if such written title is forged or fraudulent, and notice thereof is brought home to the claimant before or at the time of the commencement of his possession, no prescription shall be based thereon," were not applicable to the instant case, for the reason there was no evidence as to forgery or fraudulent acts. What is said above is not in conflict with Butler v. Lovelace-Eubanks Lumber Co., 37 Ga. App. 74 ( 139 S.E. 83), where it was held that, although the part of the Code, § 85-407, as to title by prescription, which relates to forged or fraudulent deeds, was not applicable to the case on trial, the charging of that section could not have harmed the plaintiff and was not cause for a new trial.
The request to charge in ground 6 was: "Any writing which upon its face professes to pass title to realty, but which does not do so, either from wanting title in the person making it, or from a defect in conveyance, but which defines property purported to be conveyed, is sufficient to constitute a color of title." This request was taken from the decisions in Beverly v. Burke, 9 Ga. 440, 443 (2) (54 Am. D. 351); Street v. Collier, 118 Ga. 470 ( 45 S.E. 294); Turner v. Neisler, 141 Ga. 27 (6) ( 80 S.E. 461); Byrom v. Riley, 154 Ga. 580 ( 114 S.E. 642); Gooch v. Citizens Southern Bank, 196 Ga. 322 (2) ( 26 S.E.2d 727).
The request to charge in ground 7 was: "That a color of title with more than seven years adverse possession is a stronger title, and will prevail over a perfect paper title with no possession." This request was based on the decisions in Baxley v. Baxley, 117 Ga. 60 (3) ( 43 S.E. 436); Godley v. Barnes, 132 Ga. 513 ( 64 S.E. 546).
While the trial judge did not use the language requested, as set forth in the 6th and 7th grounds, his general charge sufficiently covered the effect of color of title as applied to the facts of the present case.
In so far as any of the above requests to charge were properly adjusted to the pleadings and the evidence, they were sufficiently covered by the charge as given.
3. Special grounds 8, 9, and 10 complain of the following portions of the charge: (a) "The court says further to you in this connection that, if you find that the contentions of the plaintiff, W. C. Rogers, are true, that if he bought the land in 1926 and bought it in good faith, believing that in doing so that the deed executed to him by the Brunswick Peninsula Company conveyed the title to the said land to him, and that, if you should further find that he had no actual knowledge that the paper title was vested in William Baywell, and you should further find that he entered into possession under his deed in good faith, believing that he was the owner of the land, and that he remained in possession of the land, as contended by him, from [the] year 1927 to the last of the year 1939, and should further find that his possession of the said land was quiet, peaceable, open, continuous, and adverse in his own right, and should find that it was of such nature as to notify other people that he was claiming said land, that is to say, if you should find that he used it for turpentine purposes continuously during this period of time, and in doing so he chipped and dipped and raked it, and this work continued for the greater part of the year, then under those circumstances his title to the land would ripen by prescription, and the plaintiff would be entitled to recover the land from the defendant." (b) "On the other hand if you should find that the plaintiff, W. C. Rogers, in the year of 1926 [1927?] took the deed from the Brunswick Peninsula Company with the knowledge that there was an outstanding paramount title vested in the predecessor of Mrs. Agnes Manning, the defendant, or if you should find that he did not take the deed in good faith, and you should find that he remained in the possession of said land knowing that he was not acting in good faith, and knowing that there was an outstanding deed to this land which vested the title in another person, then under those circumstances his title would not ripen by prescription, and he would not be entitled to recover against the defendant." (c) "The court further says to you that, if you should find that the plaintiff acted in good faith, and that he entered upon the said land believing that he was the owner thereof, but, if you should find that his possession was not continuous, or was not open or peaceful or not adverse, then under those circumstances the title would not ripen by prescription, and he would not be entitled to recover against the defendant." (d) "Before this title would ripen by prescription and before he would be entitled to recover the land, it must appear that he not only acted in good faith and that he purchased the land ignorant of the fact that there was an outstanding deed executed to the predecessor in title of Mrs. Agnes Manning, the defendant, and that he remained in possession thereof in good faith, but it must appear that he was occupying this land in his own right." (e) "It must further appear that his possession of the land was quiet and peaceable and that his possession was quiet and peaceable, and that the possession was continuous, or in other words, if his possession during all of that period of time was interrupted or if he failed to remain in possession continuously for seven years, then the title to the said land would not ripen by prescription and he would not be entitled to recover against the defendant."
The portion of the above charge designated as (a) was not erroneous, as complained of in ground 8, because it was not sound as an abstract principle of law. Nor was the entire excerpt from the charge erroneous, as complained of in ground 9, for the alleged reasons: (1) That it was argumentative and tended to emphasize that the plaintiff had only one way to recover as against three ways not to recover, in that in the first excerpt there was only one proposition stated whereby he could recover, and in the three following excerpts lengthy descriptions were given whereby the plaintiff could not recover; (2) the charge was confusing and misleading; (3) in the first excerpt the necessary instruction was given in behalf of the plaintiff for prevailing, while in the following three excerpts there was much more instruction showing whereby the plaintiff should not recover.
The 10th special ground complains of the excerpt from the charge designated as (e). The criticism is: the evidence supported the contention that the plaintiff had been in possession of the land partly in person, and the greater part of the time by tenants, and the charge tended to exclude from the jury any consideration of the time when the land was occupied by the plaintiff's tenants, in the ripening of his title by prescription.
There is no merit in this ground. While it is the duty of the court to instruct the jury as to the law applicable to every material issue in the case, even in the absence of any request ( Investors Syndicate v. Thompson, 172 Ga. 203 (2b), 158 S.E. 20), in the present case there was no contention that the possession of the plaintiff's tenants was not his possession. Furthermore, the language in excerpt (a), that if the jury "should find that he used it [the land] for turpentine purposes continuously during this period of time, and in doing so he chipped and dipped and raked it, and this work continued for the greater part of the year, then under those circumstances his title to the land would ripen by prescription, and the plaintiff would be entitled to recover," clearly shows that the jury were instructed to give the plaintiff credit for the possession of his tenants, in the ripening of his title by prescription.
4. The next question is whether the evidence was sufficient to support the verdict for the defendant. The uncontroverted evidence showed that the plaintiff purchased the land in 1927, and that he worked it for turpentine purposes until 1940. In this connection the court properly instructed the jury that, insofar as the paper title was concerned, the title of the defendant was superior to that of the plaintiff, but that the plaintiff's claim was based upon a title by prescription. The plaintiff testified that, when he bought the land, he did not know there was any outstanding title, and that he did not know William Baywell at that time, but learned in 1940 that the defendant had bought the land from Baywell. The plaintiff is seeking to recover in a statutory suit for land, and while the defendant's husband who bought the land for her testified that, before making the purchase in 1939, he asked the plaintiff who owned the property, to which the plaintiff replied, William Baywell, the answer did not aver that the defendant or her husband acted on the strength of such statement, or that the plaintiff under equitable principles was estopped on account of the statement from denying that William Baywell was the owner. Neither the defendant nor her husband testified that the plaintiff told them that he knew of the outstanding title before or at the time he purchased the land in 1927.
"When an adverse possessor has held for the requisite period and his prescriptive title ripens, it extinguishes all other inconsistent titles and itself becomes the true title." Powell on Actions for Land, 459, § 349; Danielly v. Lowe, 161 Ga. 279 (3) ( 130 S.E. 687). "When a party claims adversely, it is not necessary for him to show that he went into possession bona fide, but the burden of showing fraud is upon the opposite party." Reynolds v. Smith, 186 Ga. 838, 842 ( 199 S.E. 137).
Under the uncontroverted evidence in the present case, the plaintiff purchased the property in 1927, and did not learn of the outstanding title until some time prior to 1939. In 1927, upon purchase by the plaintiff, he entered into possession, which was not questioned until 1940. All the elements of adverse possession by the plaintiff are shown to have been present. The knowledge that he acquired in or prior to 1939 as to the outstanding title did not relate back to the time of his entry in 1927, and his bona fides in such entry was unaffected thereby. There was conflicting testimony as to whether or not the plaintiff was apprised of the outstanding title before the defendant procured her deed in 1939; but, even if he was aware of the outstanding title in 1939, which fact he denied, that fact would not, under the authorities above cited, necessarily militate against him. If in fact he honestly believed, as his uncontroverted testimony shows, that he was acquiring a good title from Brunswick Peninsula Company in 1927, and thus entered into possession with all the elements of adverse possession thereafter present, he had an inchoate title which could ripen into a good title in seven years. Fraser v. Dolvin, 199 Ga. 638 ( 34 S.E.2d 875).
The evidence for the plaintiff showing that he purchased the land in good faith and entered possession in 1927, and the evidence for the defendant merely showing that the plaintiff knew of the outstanding title of William Baywell before the defendant procured her deed in 1939, the verdict for the defendant is without evidence to support it, and the trial judge erred in not granting a new trial.
Judgment reversed. All the Justices concur.