Morrison v. Hays

By the Court. Lumpkin, J. delivering the opinion. [1.] In the case of Royall vs. The Lessee of Lisle and others, (15 Ga. R. 545,) this Court say: “ We understand the doctrine to be briefly this: the person owning the title to land is constructively in possession, and this possession continúes until some adverse claimant goes into the occupancy, with intent to claim the fee, as against the true owner; and this intention may be manifested by declarations or by acts of ownership, which are open, notorious and visible.” We re-affirm the doctrine thus succinctly stated: and ta [296] king that case as our guide, we are clear that this verdict was contrary to law and evidence, and the charge of the-Court; and that the finding should have been for so much of the lot of land as was not inclosed and cultivated by the defendant. He was not in for seven years under paper title, nor was his possession, as to so much of the lot as was unenclosed, of such a character as to amount to an assertion to the world that he, Iona fide, claimed the fee as against the true owner and every body else. His adverse possession, therefore, was confined to the possessio pedis, or corporeal occupation. It is argued by Col. McDougald, with much ingenuity, that the very action itself admits the possession, by the defendant, of the whole lot; else why, he asks, sue for the whole ? Why not limit the writ to so much as is in the actual occupancy of-the defendant, and enter upon the balance as vacant ? The answer is this: the present tenant is in possession of the whole because she occupies a part under paper title; and such was the character of the possession for five years before the ejectment was brought. Previous to that there was possessio pedis only, so that the present tenant, although constructively in possession of the whole, has a statutory title only to this possessio pedis; still, the necessity of including the entire lot in the writ is obvious, because, at the commencement of the-suit, Mrs. Hays was in the possession of the whole, being in the possession of a part under paper title to the whole. If authority was needed to show that judgment may be given for the residue, where the defence is good only for a part of the premises, it is abundant. (Underwood ads. Jackson, 1 Wend. 95 ; Clay vs. White, et al. 1 Munf. (Va. Rep.) 162.) [2.] One of the necessary elements of adverse possession is, its continuity ; and it is argued by Col. .Clarke, that such adverse possession is not efficacious, when taken successively by different persons. This depends upon the circumstances of the case. We think the better doctrine is, that where several persons enter on land in succession, the several posses [297] sions cannot be tacked so as to make a continuity of possession, unless there is a privity of estate, or the several titles are connected. (7 Serg. & Rawle, 177; 5 Met. R. 15; 3 Wash. C. C. R. 475; 6 Pick. 415; 20 Ibid, 465; 9 Cowen, 653 ; 10 Johns. 475.) [3.] As to the evidence of McQuordale, as to what Hunt-said, we concede that it was illegal; but not having been objected to by the plaintiff, it is no ground for a new trial, even under the stringent Act of 1853-4. It cannot be said to have been admitted by the Court; it went to the Jury by the-implied consent of the party. And the maxim, non fit volenti, applies. Suppose a party expressly agrees that incompetent testimony shall go to the Jury — can he get a new trial because, in the language of the Statute, illegal evidence-was admitted ? Surely not. [4.] The Court was asked to charge, that every possession \ was in subordination to the title of the true owner. The Judge properly refused so to instruct the Jury. It depends itpon the nature of the possession. Is it consistent with the idea of paramount title in another ? If so, it is subordinate; otherwise, it is not. The line of demarcation cannot be accurately drawn. [5.] In England, where the whole country is cultivated by tenantry, the rule requested would generally apply. Not so much, however, in this country, and especially at the South, whore almost every occupant of land is the owner and “ lord of all he surveys.”