Opinion
14689.
NOVEMBER 11, 1943.
Complaint for land. Before Judge Mitchell. Whitfield superior court. July 26, 1943.
Stafford Brooke, for plaintiff in error. D. W. Mitchell, J. H. Paschall, contra.
1. The issue in ejectment, or in statutory complaint for land, arising upon the declaration and plea of general denial, is, did the plaintiff at the date suit was commenced have a legal title to the premises, or to any estate or interest in them, or any part thereof, coupled with then present right of entry as against the defendant? Barfield v. Birrick, 151 Ga. 618 ( 108 S.E. 43); Peeples v. Rudulph, 153 Ga. 17 (4) ( 111 S.E. 548).
2. Where the plaintiff and the defendant in ejectment are coterminous owners, claiming under a common propositus, the plaintiff's right of recovery depending on the location of the boundary line in dispute, and the location of the boundary line depending on the title of the parties to their respective tracts of land as described in the deeds from the common grantor, and no other claim of ownership by either of the parties being made to the disputed tract by virtue of possession, either under color of title or by acquiescence or agreement, the question to be determined is one of title to the disputed tract, or the location of the boundary line. Barfield v. Birrick, Peeples v. Rudulph, supra. In such circumstances it was error for the court to charge the jury that if they found from the evidence that the plaintiff was in possession of the disputed tract before the defendant's encroachment, the plaintiff would be entitled to recover, and that if they found from the evidence that the defendant had possession of the disputed area before the plaintiff's purchase of the property, the plaintiff would not be entitled to recover.
3. Since a reversal will result from the erroneous charge of the court, and the evidence on the next trial may not be the same, no ruling will be made on the sufficiency of the evidence to support the verdict.
4. As the judgment is reversed, no ruling is made on the assignment of error attacking the form of the verdict, since on the next trial the form of the verdict will not likely be the same.
Judgment reversed. All the Justices concur.
No. 14689. NOVEMBER 11, 1943.
Mrs. Vassie Burch sought by ejectment to recover of T. R. Lovain a strip of land described as being part of city lot No. 8 of Orchard Hill Addition on West Matilda Street in the City of Dalton, Georgia, to which the plaintiff claimed title. It was alleged that the defendant had enlarged a storehouse which extended one foot over the line and upon the northern part of plaintiff's property which fronts on Matilda Street, and that as it extends southward, because of the irregular shape of the lot, it takes in and covers a gradually widening portion of plaintiff's lot until at the south end of the storehouse, at the south part of plaintiff's lot, the space covered by the store house is four feet of plaintiff's lot. Plaintiff and defendant, it was averred, claimed under a common grantor. Defendant's answer contained a general denial. Deeds from J. J. Wood, the common grantor, to the respective parties were introduced in evidence on the trial. The deed to T. R. Lovain was dated April 20, 1937, and conveyed a part of city lot No. 8 of the Orchard Hill Addition with the starting point beginning at the corner of Lucky and Matilda Streets and running west along Matilda Street fifty-five feet. The deed from Wood to Mrs. Vassie Burch, the plaintiff, was dated January 9, 1939, and conveyed the remainder of said lot. The starting point in the description began on the south side of Matilda Street fifty-five feet, more or less, west of the intersection of Matilda and Lucky Streets, and ran along the south side of Matilda Street a distance of seventy-seven feet, more or less. It was also recited in this description, "This being the remainder of said lot No. 8, . . the other portion having been sold to T. R. Lovain." The evidence was conflicting as to the location of the dividing line between these two tracts of land, and as to whether the defendant in constructing his building had encroached on the property of plaintiff. The dispute related to the proper starting point for the measurement of the fifty-five feet frontage on Matilda Street, called for in the deed of J. J. Wood to T. R. Lovain. The jury returned a verdict in favor of the plaintiff, with recommendation as to the manner of establishing the property line. A motion for new trial was overruled, and the defendant excepted.
Error was assigned on the form of the verdict, as contrary to the law and the evidence; that it is void because it does not describe the property found for the plaintiff and that it is too indefinite and uncertain to support a writ of possession without additional and extrinsic evidence; and because it was a compromise verdict. Complaint is made that the court erred in charging the jury "That if you should find from the evidence in this case that the plaintiff was in possession, that is, exercised acts of possession over the disputed tract, prior to the time the defendant erected his store, the addition to his store building, that the plaintiff had prior possession of this disputed tract, that the plaintiff would be entitled to recover. On the other hand, I charge you, if you should find from the evidence in this case that the defendant had prior possession of this disputed area prior to the time Mrs. Burch purchased the property from Wood, and erected a dwelling-house thereon, then the plaintiff would not be entitled to recover." The defendant alleged, that this charge was erroneous, because it permitted the plaintiff to this recover upon a mere showing that she had exercised acts of possession over the disputed tract, regardless of whether she held title to the tract, and regardless of the length of time she had been in possession thereof; that the court failed to charge in that connection that such possession would have to be adverse and under color of title; that the charge was not warranted by the pleadings or the evidence, for that neither plaintiff not defendant relied on possession to sustain their contentions, but relied on title; that it was an incorrect statement of the law as applicable to the pleadings and the evidence; and that the movant's defense was restricted to his possession alone, and deprived the jury of the right to consider his defense that he held title to the disputed tract.