Chalker v. Beasley

Sutton, P. J. (After stating the foregoing facts.) The rule is, in passing on a motion for a nonsuit, that the evidence should be construed most favorably to the plaintiff; and if, when so construed a prima facie case 'is made out, a nonsuit should not be granted. Eubanks v. Mullis, 51 Ga. App. 728 (181 S. E. 604); Henry v. Roberts, 140 Ga. 477 (79 S. E. 115). *660 This is a trover suit for the recovery of a described house after it was detached from the realty. It was held in Kennedy v. Smith, 149 Ga. 61 (99 S. E. 27), that such an action will lie. The non-suit was granted on the motion, “That the description of the property in question, referred to in plaintiffs’ evidence, was insufficient.” The defendant’s demurrer, consisting of three grounds, is set out above, and in overruling the demurrer it was adjudicated: (1) That the petition set out a cause of action; (2) that the description of the property sued for was sufficient to authorize a recovery; (3) that the plaintiffs have a right to bring the action. ' This fixed the law of the case, and if the evidence prima facie supported the case as laid, it was error to grant a nonsuit. The evidence is set out above, and, in our opinion, it substantially supports the allegations of the petition and was sufficient to authorize the court to submit the case to the jury. The evidence shows that Emma Kitchens had a deed to three acres of land in the 1460th district (Stapleton district) of Jefferson County, Georgia; that the three-acre tract was bounded on the north by the Stapleton-Bethel Church Boad, on the east, south, and west by the lands of S. It. Beasley; that a described dwelling house was built on this three acres of land for Mrs. Emma Kitchens and a deed to this property was made to her, and that she lived in the house, and was in possession of the property for about ten years after the property was bought for and deeded to her and her children; that the house was known as the Emma Kitchens house; that the three plaintiffs are her children and her heirs at law; and that the said Emma Kitchens died prior to the bringing of this trover suit. The defendant tried a number of .times to buy this property from Emma Kitchens, but she refused to sell it to him, and, after she moved out of the house, and shortly after her death, he tore the house down and removed it, although he did not claim to be the owner of the property, and the only reason he gave for doing this was that he was afraid the house would be destroyed by fire. There was evidence as to the value of the house, demand and refusal on the part of the defendant to deliver the same to the plaintiffs or to pay them therefor. To support an action of trover it is mecessary for the plaintiff to show either title in himself at the time of the commencement of the action, prior possession, or the right of immediate possession. *661 Southern Railway Co. v. Strozier, 10 Ga. App. 157 (73 S. E. 42); Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 (177 S. E. 79), and eit. It can not reasonably be said that Emma Kitchens could not have recovered the house in question from the defendant, had she been living. She had a deed to the property and had been in actual possession of it for more than ten years and no one else even claimed the property. It appears that the reason the deed was not introduced in evidence was that it was lost. There was no question that it did not cover the three acres of land on which the Emma Kitchens house was -located. The Code, § 85-407, provides that adverse possession of land under color of title for seven years gives a title by prescription. There was evidence that the deed was made to Emma Kitchens and her children, that the plaintiffs were her children and heirs at law. Upon the death of the owner of any estate in realty, the title vests immediately in his heirs at law (Code, § 113-901), and the plaintiffs here were entitled to the immediate possession of the property upon the death of the intestate. Bacon v. Howard, 19 Ga. App. 660 (7) (91 S. E. 1066); Lester v. Toole, 20 Ga. App. 381 (93 S. E. 1099); Dorris v. Dorris, 149 Ga. 170 (99 S. E. 532). The suit is for the house, which the defendant removed from the realty and took possession of without any claim of right whatever. Under the record as here presented and the law applicable thereto, we think the evidence substantially proved the plaintiffs’ ease as laid and that the court erred in granting a nonsuit. Pursuant to the act of the General Assembly, approved March 8, 1945, requiring that the full court consider any ease in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole. Judgment reversed. Broyles, C. J., MacIntyre, Gardner and Parker, JJ., concur.