Summary
In Memory v. Walker, 209 Ga. 916 (76 S.E.2d 698) (1953), a highly restrictive rule was set down as to actual possession of timberlands.
Summary of this case from Cheek v. WainwrightOpinion
18211, 18259.
ARGUED MAY 11, 1953.
DECIDED JUNE 8, 1953. REHEARING DENIED JULY 15, 1953.
Complaint for land. Before Judge Thomas. Pierce Superior Court. March 9, 1953.
Memory, Barnes Memory, for plaintiff in error.
Lee S. Purdom and Harvey D. Griffin, contra.
1. The averments of defendant's answer — to the effect that the petitioner as administrator of the estate of Nellie Davis was estopped from a recovery of the defendant's interest, because, (1) at the time of her death, Nellie Davis, who was survived by her husband, J. M. Davis, had title to a 120-acre tract of land which included the 10 acres in dispute, and her husband was entitled to a one-ninth distributive share therein; and (2) subsequently on March 7, 1936, J. M. Davis conveyed the 10-acre tract to A. E. Davis, who in turn conveyed it to the defendant, thus conveying to the defendant a one-ninth undivided interest in the 10 acres — were insufficient to constitute an estoppel as against the administrator of the estate of Nellie Davis, and accordingly the trial judge did not err in striking the above averments from the answer.
The allegations of the present petition in the statutory form of an action to recover land were sufficient to set forth a cause of action, and the trial judge did not err in overruling the general demurrer thereto. Dugas v. Hammond, 130 Ga. 87 ( 60 S.E. 268); Callahan v. Beeland, 170 Ga. 760 (2) ( 154 S.E. 226).
2. Though the tax deed in the present case was void, yet it constituted such color of title as would support prescription by seven years' adverse possession.
3. The evidence as to adverse possession was insufficient to authorize the finding in favor of the defendant.
Nos. 18211, 18259. ARGUED MAY 11, 1953 — DECIDED JUNE 8, 1953 — REHEARING DENIED JULY 15, 1953.
This is a suit to recover land, filed in Pierce Superior Court by S. F. Memory, as administrator of the estate of Nellie Davis, against E. L. Walker. The petition as amended alleged substantially the following: The defendant was in possession of a described 10-acre tract of land in lot number 137 in the Fourth Land District of Pierce County, to which the petitioner claimed title. The petitioner prayed for process, service, and a recovery of the property. Attached to the petition was an abstract of title showing two conveyances: the first from Hybert Williamson to Matthew A. B. Howard, dated February 21, 1891, and the second from Matthew A. B. Howard to Nellie Davis, dated January 28, 1893.
The defendant answered, admitting that he was in possession of the land, and vouched A. E. Davis into court to defend the title. Further answering, the defendant averred that 120 acres of land, including the 10-acre tract, was sold for taxes by the sheriff on November 5, 1935, to A. E. Davis. The land was levied on as property of Nellie Davis estate, John M. Davis, agent. On March 7, 1936, A. E. Davis conveyed the 120 acres of land, including the 10-acre tract, to J. M. Davis. On the last-mentioned date, J. M. Davis conveyed back to A. E. Davis, the 10-acre tract. On September 4, 1951, A. E. Davis conveyed the 10 acres to the defendant. The defendant and A. E. Davis have been in adverse possession since March 7, 1936.
The trial judge overruled the general demurrer to the amended petition, and sustained in part and overruled in part the petitioner's demurrer to the defendant's amended answer, to which rulings the defendant filed exceptions pendente lite.
The jury returned a verdict for the defendant. The petitioner's motion for a new trial, based solely on the ground that the verdict was without evidence to support it, was overruled, and the case comes to this court for review upon his exceptions to that judgment. The defendant in a cross-bill excepted in so far as the rulings on demurrer were adverse to him. Other facts will be stated in the opinion.
1. The rulings announced in the first headnote do not require elaboration.
2. The tax executions were issued against "J. M. Davis, agent of Nellie Davis estate." Hence, the words, "agent of Nellie Davis estate," following the name J. M. Davis, are merely description personae, and the executions are against J. M. Davis personally. Glisson v. Weil Co., 117 Ga. 842 (1) ( 45 S.E. 221). If the executions be considered as issued against the estate of Nellie Davis, they are likewise invalid. "A tax execution issued merely against the estate of a named person, not being an execution in rem and being against no person as a defendant in fi. fa., is void." Wilson v. City of Eatonton, 180 Ga. 598 (1) ( 180 S.E. 227), and citations.
However, "a deed properly executed by a sheriff pursuant to a sale under a tax execution, even if void for any reason, is such color of title as will support prescription by seven years' adverse possession." Smith v. Jefferson County, 201 Ga. 674 (1) ( 40 S.E.2d 773). It follows that, though the tax deed in the present case was void, it constituted color of title.
3. A controlling question is whether the evidence was sufficient to authorize a finding that the defendant and his grantor had been in adverse possession for seven years. The acts relied on to show adverse possession were in effect: A named person recognized the ownership and possession of the defendant's grantor and was permitted to work a few old boxes on pine trees for three or four years; the defendant's grantor plowed fire breaks to protect the growing young trees, and burned fire breaks on two sides to keep fire off of the land; he planted pine trees for two or three years, but not many of them lived; he had the land surveyed, and the corners and the land lines marked; he kept fire off of the land continuously until the trees got up to seven or eight years old; he kept trespassers from getting wood off of the land, and kept named persons from working turpentine trees thereon; he worked the fire breaks four or five times annually, and observed the land quite often to see if anyone was trespassing on it, or had fire on it; he returned the property for taxation and paid taxes thereon for 12 or 14 years.
The evidence shows that there was no dwelling or outhouse of any kind on the land in question. It was not fenced, and no part of it was in cultivation. In such circumstances the acts relied upon by the defendant and his grantor do not amount to actual, open, visible, exclusive, and unambiguous possession of land. Code, § 85-402; Anderson v. Barron, 208 Ga. 785, 794 ( 69 S.E.2d 874), and cases cited.
It follows that the evidence was insufficient to support the verdict in favor of the defendant, and the trial judge erred in overruling the petitioner's motion for a new trial.
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill. All the Justices concur, except Atkinson, P. J., not participating.