Studstill v. Willcox

The suit was brought by the administrator of Mark Willcox against William Studstill et al., who pleaded the general issue and prescription. The jury found for the plaintiff', and defendants’ motion for a new trial was overruled. Plaintiff proved title in Mark Willcox, the deed to him being dated in 1847. There was evidence for defendant, that about two years after that time Will-cox put Wright Collins, his sou-in-law, in possession of the land, and Collins remained in possession, made valuable improvements and exercised acts of ownership until he conveyed the land by deed to W. R. Walker in 1859. In the motion for new trial error is assigned on the refusal of the court to receive any evidence going to show that Willcox made a parol gift of the land to Collins ; and upon refusal to charge the jury, that if W. R. Walker went into possession under the deed from Collins, made valuable improvements and remained in open, peaceable and continuous possession for seven years or more, he obtained a good prescriptive title, and plaintiff could not recover. There was further evidence for defendant, that W. R. Walker remained in possession of the land, adversely, peaceably, etc., by himself and his tenants, until it was levied on and sold by the sheriff to M. A. Walker in 1869, under an execution in favor of Campbell v. W. R. Walker, Wright Collins and William Studstill; that M. A. Walker went into possession under 693 his purchase, and put J. E. Walker, his brother, in. possession under a parol contract of purchase; that J. E. W alker cultivated the land but failed to pay for it, and M. A. Walker then sold it to B. F. Clark by parol contract and put him in possession, after which Clark sold it to J. W. Stevenson by parol contract, and after he had been in possession two or three years, by agreement between all of them M. A. Walker made a deed to Stevenson; and that defendants hold under successive conveyances from Stevenson down. Another ground of the motion for a new trial is, that the court charged the jury that the possession of W. R. Walker could not be tacked to that of Collins to make a prescriptive title; nor could the possessions of the others named be tacked to that of M. A. Walker to make a prescriptive title, if it should not appear that J. E. Walker or B. F. Clark were tenants or agents of M. A. Walker. A further ground is, that the court ruled out the execution under which the sheriff’s sale was made, issued from Telfair superior court, with the entries thereon of levy and sale. The sheriff’s deed in evidence, dated August 3, 1869, described the land conveyed as “ lying in the 14th district Telfair county, as numbers 318, 313, 342, one acre deep off the west side and ninety acres off of three hundred an'd thirteen and forty off of (318) three hundred and eighteen 347 a fraction 34 acres more or less 343, 284, 287, 314, 344 with seven acres south side, 316 lying west of mill creek.” The entry of levy described the land thus : “all in the 14th dist., No. 313, 318, 342, one acre deep off of the north side of each lot No. 347, 34, numbers 343, 234, 281, 257, 314, 287, 344, 7 acres off. All of lot No. 316 lying west of mill creek.” Also, that the court refused to allow defendants to prove that the mill creek referred to in this levy was then in Telfair county. Jordan & Watson, B. R. Calhoun and J. H. Martin, for plaintiffs in error. Roberts & Smith, contra.