Verdery v. Savannah, Florida & Western Railway Co.

Bleckley, Chief Justice. 1. Upon the admitted facts in the case the presiding judge decided as matter of law that the plaintiff', as to her own individual right to half of the premises in dispute, was barred by the statute of prescription. Ye see not the slightest indication in the record that this ruling was erroneous. Nor do we entertain any doubt that where the facts are admitted or undisputed, the judge may decline to submit them to the jury, and may decide directly the question of law arising upon them. Of. course had any of the material facts involved in this branch of the case been in dispute, the jury should have dealt with them, under proper instruction from the court as to the law. 2. According to the charge of the court (a copy of which is in the record), and to the statements contained in the order overruling the motion for a new trial, the right of the plaintiff to recover as the administratrix of her deceased brother, George H. Conn, was made to turn wholly upon the defence of prescription, as to the one undivided half of the premises which he took under his father’s will. Inasmuch as all other defences were expressly withdrawn from the jury, the evidence as to them, whether rightly or wrongly admitted, became immaterial; indeed, withdrawing the defences themselves amounted virtually to withdrawing all the evidence which had been submitted in support of them. 3. George H. Conn attained his majority in 1869, and died in 1886 ; this action was brought by his administratrix in 1887. The adverse possession, under written color of title in the defendant corporation and those [683] under whom it claimed, had been continuous and uninterrupted from the year 1866, consequently for more than sixteen years during the lifetime of the plaintiff's intestate after his minority ueased. During the first part of the period the possession was held by the Atlantic & Gulf Railroad Company. Then came an interval of some two years, in which the property was in the hands of a receiver appointed by the United States Circuit Court upon a bill filed against the company by its creditors, to subject the‘same to the payment of its debts. The residue of the term of possession was by the defendant in this action, under a sale and conveyance made in pursuance of the decree rendered by said court upon the bill just mentioned. Had Conn been under no disability by reason of unsoundness of mind, his rights would have been barred irrespective of the holding by the receiver; for adverse possession of lands under written evidence of title for seven years gives title by prescription. Code, §2683. The possession, however, must be public, continuous, exclusive, uninterrupted and peaceable, and be accompanied by a claim of right. Id. §2697. An inchoate prescriptive title may be transferred by the possessor to a successor, so that the successive possessions may be tacked to make out the prescription. Id. §2689. The alleged disability of Conn, had it in fact existed and been continuous, would have hindered the statute of prescription (code, §2686) from running against him at all; but as it was intermittent, the question arose in the case whether the time, or any of it, during which the property was in the hands of a receiver, could be counted as a part of the prescriptive period. The court thought it could be counted, and so instructed the jury. Upon principle we consider this correct, and all the authority we can find on the subject tends to support it. It may safely be [684] affirmed that the property of a debtor in the hands of a receiver, for the purpose of being appropriated for the mutual benefit of the debtor and his creditors, is held by the receiver as a successor of the debtor, if not as a quasi agent for him. As against strangers to the suit such.holding is no .breach of continuity. The statute of limitations (or of prescription) in favor of the debtor’s inchoate prescriptive title is not suspended, but continues to run pending the receiver’s possession. Kerr on Eeceivers, 160-1; Beach on Eeceivers, §§1, 219, 220 ; High on Eeceivers, §§135, 184, 556. There is nothing in our statutes indicative of a purpose by the legislature to stop the running of prescription because a court has possession by its receiver; and certainly there is no necessity for treating the period of such possession as an implied exception, for a stranger who claims the property is not without a remedy. On the contrary he has two remedies, one of which is discretionary with the court whose receiver has possession. The other is matter of right in all cases. By petition pro interesse suo, the claimant to the property held by a receiver is entitled always to a hearing, should the court in its discretion think proper to deny him leave to bring a separate action in his own behalf. 2 Story Eq. 833a; 3 Daniel Chan! Pr. *1744; Beach on Eeeeivers, §654; High on Eeceivers, §139. The reluctance of courts to engraft exceptions upon statutes of limitations is everywhere apparent. A comprehensive view of it may be had by consulting Tyler on Ejectment, 928-933. And in Jones vs. Bivins, 56 Ga. 538, it was ruled that the exceptions specified in the code, by which a prescriptive title will be defeated, are exhaustive and will not be enlarged by construction. 4. No prescription works against the rights.of an [685] insane person so long as the insanity continues ; but he has a like number of years after the disability is removed, to assert his claim against the person prescribing. Code, §2686. A prescription commenced ceases against a person under disability, pending the'disability, but on its removal the prior possession may be tacked or added to the subsequent possession to make out the prescription. Id. §2687. In view of these two rules, the court instructed the jury that if adverse possession, with all the characteristics required by the statute, existed after George H. Conn became of age, during periods which added together make more than seven years whilst he was of sufficiently sound mind to understand his rights if they had been explained to him, the jury would find against his administratrix. We think this correct, taking it in the light of the evidence contained in the record. There' is no reasonable probability that Conn was insane at all until 1873, and in so far as the evidence renders definite the intervals of sanity, compared with those of insanity, the former would seem to be about three-fourths, and the latter one-' fourth, of each month. It is true that these definite terms apply directly to certain years (1879 and two or three years, thereafter), but the witness who testifies was a physician who treated him, and who gave it as his professional opinion that similar intervals had been realized by his patient for several years previously. 5. In 1883, proceedings were had under section 1855 of the code, on a commission of lunacy sued out in Douglas county, the object of which was to have Conn committed to* the lunatic asylum. The finding of the jury on this commission was in Conn’s favor, and that he was not a lunatic. An exemplified .copy of these proceedings was admitted in evidence by the court at the instance of the defendant, over objection by the [686] plaintiff. Several objections are mentioned in the motion for a new trial, hut the only ones verified as having been presented are, that the papers had never been filed or recorded, and that no judgment had been entered thereon. The certificate of the ordinary verifying the exemplification shows that the papers were on file in his office, and there is no law requiring them to be recorded, or providing for or authorizing any judgment to be entered up on the verdict of the jury, inasmuch as the verdict found that the party was not a lunatic. The evidence might have been objectionable for other reasons, but we think it was not amenable to' the objections above specified. 6. The 5th ground of the motion for a new trial, which complains that the court superadded certain observations after giving in charge the request made by the plaintiff, must fail, because some of the superadded matter is undoubtedly legal. The rule is, that unless the whole of the charge excepted to is illegal, the exception must specifically point out the illegal part. 7. The alleged newly discovered evidence is so obviously insufficient to require or authorize a new trial, that we need not discuss it. 8. On the general question of the verdict being warranted by the evidence, there might well be two opinions. Had the court below granted a new trial, we should not have disturbed its judgment. A careful reading of the evidence satisfies us that we should in like manner defer to the decision ’ refusing a new trial There is enough evidence in favor of the verdict to uphold it. The judgment in the main case being affirmed, the cross-bill of exceptions is dismissed. Judgment affirmed.