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Ejectment. Before Judge Carpenter. Putnam Superior Court. February 2, 1957.
CANDLER, Justice.
Under the evidence in this case a verdict for the defendant was demanded and the trial judge should have sustained the defendant's motion for a judgment in his favor notwithstanding a verdict in favor of the plaintiff.
This action in ejectment was brought in the fictitious form to recover a small, but well described, tract of land in Putnam County. W. F. Leverette is the real plaintiff and H. B. Hearn is the real defendant. The defendant's answer denies that he is wrongfully in possession of the land and avers that he has a good prescriptive title to it which is superior to the plaintiff's record title.
On the trial the plaintiff introduced in evidence his chain of title which begins with a warranty deed from Putnam Oil & Fertilizer Company to the Oconee Oil Refining Company, dated September 19, 1906, and ends with a sheriff's deed from J. L. Paschal to W. F. Leverette, the plaintiff, dated June 7, 1932. There are sixteen links in the plaintiff's chain of title, all of which are recorded. The evidence shows without dispute that the plaintiff has had no possession of the land since he purchased it in 1932 and that he has not returned it for taxation or paid taxes on it. The defendant introduced in evidence a warranty deed to himself from Mrs. Annie Lou Wall, dated May 18, 19--, and recorded in Putnam County on May 18, 1948. The evidence shows without dispute that the defendant, at the date of his purchase, paid Mrs. Wall $1,200 for the land; that immediately after his purchase of it he repaired a dilapidated building on the lot; that in making such repairs, it was necessary for him to use about 2,500 new bricks, place a new roof on it, seal up the windows, put a new door on it, and the building has been locked up since then; that in 1948 he erected an overhead pipe from his gin on other land owned by him to the building on the land in question and blew cotton seed through it for about one year, and stored them in the building he had repaired; that the overhead pipe from his gin to said building was not removed until 1953; that he, immediately after his purchase of the land from Mrs. Wall, had an electric line erected and connected to the repaired building; with two poles on the premises and light fixtures in the building which have been maintained continuously since the date of installation until this action was filed on February 22, 1956; that in 1953 he permitted the Agricultural Extension Service to store bulk lime on the land in question, some of which is still on the premises; that a spur track from the main line of the Central of Georgia Railroad Company passes over the land in question and he has used it in connection with his business and permitted others to use it continuously since the date of his purchase from Mrs. Wall; that he has used the repaired building on the land involved as a place for storing various articles of merchandise continuously since he acquired the property; that his possession of the land has not been questioned or interfered with by anyone since the date of his purchase in 1948 until this litigation was instituted; and that he has, since his purchase of it, annually returned it for taxation and paid all taxes assessed against it.
At the close of the evidence the defendant moved for a directed verdict in his favor. His motion was denied and the jury returned a verdict in favor of the plaintiff. In due time, the defendant filed a motion for judgment notwithstanding the verdict; also a motion for new trial on the usual general grounds which was later amended by adding special grounds. Both motions were denied and each judgment is properly excepted to by the defendant.
(After stating the foregoing facts). 1. For his right to prevail in this litigation, the plaintiff relied on his unbroken chain of recorded deeds which dates back to 1906. Code (Ann.) 38-637, declares: "A prima facie case shall be made out in actions respecting title to land upon showing good record title for a period of 40 years, and it shall not be necessary under such circumstances to prove title to the original grant from the State." Thence, the plaintiff made out a prima facie case when he introduced in evidence his chain of title. But such title, like any other title to land, may be lost by the subsequent ripening of a prescriptive title thereto in another. Danielly v. Lowe, 161 Ga. 279 (130 S. E. 687). In Powell on Actions for Land (1946 ed.), 412, .349, it is said: "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."
2. The defendant contends that he has acquired a prescriptive title to the land in controversy which is superior to the title on which the plaintiff relied. As shown by our statement of the facts, Mrs. Annie Lou Wall, for a cash consideration of $1,200, conveyed the land in question to the defendant by a warranty deed which was duly recorded in Putnam County on May 18, 1948 -- more than seven years before this litigation was instituted on February 22, 1956. It is also his contention that he has had actual adverse possession of the land in good faith continuously since his deed was recorded. "Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by the laws." Code 85-401. Actual adverse possession of land, under written evidence of title, for seven years gives title by prescription, unless 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. Code 85-407. "Actual possession of lands is evidenced by enclosure, cultivation, or any use and occupation thereof which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another." Code 85-403. Adverse possession to be the foundation of a prescription "must be in the right of the possessor, and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted and peaceable, and be accompanied by a claim of right." Code 85-402. And this court has several times held that an outstanding recorded title will not prevent the ripening of a title by prescription where the possessor enters in good faith under written evidence of title from another. Wright v. Smith, 43 Ga. 291; Virgil v. Wingfield, 54 Ga. 451; Salter v. Salter, 80 Ga. 178 (4 S. E. 391, 12 Am. St. R. 249); Ware v. Barlow, 81 Ga. 1 (6 S.E. 465). In actions for land where either party relies on a prescriptive title for his right to prevail, and the evidence demands a finding that such a title has ripened in him and thereby extinguished an inconsistent title to the land, the court is authorized to direct a verdict in his favor. Code 110-104; Roberson v. Downing Co., 126 Ga. 175 (54 S. E. 1020); Blakey v. Bank of Richland, 150 Ga. 782 (1) (105 S. E. 494); Blalock v. Thomas, 176 Ga. 407 (168 S. E. 13). In our statement of the facts we have set out the evidence introduced by the parties and it will not be repeated here. It is sufficient to say it demanded a finding that the defendant had acquired a good prescriptive title to the land in controversy as against the plaintiff before this litigation was instituted.
3. Since the defendant, at the close of the evidence, asked for a directed verdict in his favor and such a verdict was demanded by the evidenced the court erred in denying the defendant's motion for judgment notwithstanding the verdict returned by the jury in the plaintiff's favor. This ruling disposes of the case and it is therefore not necessary to deal with the grounds contained in the defendant's motion for new trial. When the remittitur from this court reaches the trial court, direction is given that the verdict for the plaintiff be vacated and that a final judgment be entered in favor of the defendant.
Judgment reversed with direction. All the Justices concur.
D. D. Veal, Carl E. Westmoreland, contra.
Whitman, Whitman & Whitman, R. C. Whitman, Jr., Milton F. Gardner, for plaintiffs in error.
ARGUED MAY 13, 1957 -- DECIDED JUNE 10, 1957.
Saturday May 23 01:49 EDT

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