Nesmith v. Hand

Fish, C. J. (After stating the facts.) No complaint was made in the motion for a new trial of any error of law committed by the court upon the trial, the grounds of the motion being that the verdict was contrary to law and to the evidence and to specified instructions of the court. The contention urged here by counsel for plaintiff in error is, that the evidence showed, that the title to the land in dispute and possession of the same were in William Nesmith in 1870; that he then had 'it set a part as a homestead, and that as his widow, one of the beneficiaries of the homestead, was still in life, no prescription could run in favor of the plaintiff against her as such beneficiary, and that the outstanding, paramount title and the right of immediate possession were in her, and, therefore, plaintiff could not recover. This contention is. [510] .not sound, for tire reason that title to the premises was not shown to have ever been in William Nesmith. It did not appear that any of the grantors' in the chain of deeds under which it was claimed William Nesmith held the title had ever been in possession of the land in dispute; and, therefore, William Nesmith got .no title under*this chain. As was held in Bleckley v. White, 98 Co,. 594, “A deed from one who is apparently a stranger to the paramount title, and is not shown to have ever been in possession of the premises conveyed, is insufficient to make out a prima facie •case showing title in the grantee claiming thereunder.” In delivering the opinion, Mr. Justice Lumpkin said, “a mere deed from one not shown to have ever been in possession proves nothing more than the naked fact that the grantor in the deed thereby asserted ownership, without disclosing upon what ground or claim •of right, whether arbitrary and fictitious, or based on a real or mistaken legal or equitable title. Indeed, the grantor’s assertion is no better than that of the grantee himself, when utterly unsupported by legal and sufficient proof of a valid right to the possession or ownership of the land.” It appeared from the testimony of the defendant himself that William Nesmith remained in possession of the premises only from the fall of 1869 until January 1871, and it further appeared that neither he nor any of the beneficiaries of the homestead was ever afterwards in possession, until defendant went into possession in 1898. The fact that he had a homestead set apart in the land for the benefit of his wife and children in no’ way strengthened his title, or that of the beneficiaries as his heirs at law. Moore v. Moore, 126 Ga. 737. Under the evidence, the plaintiff was entitled to recover upon prescription under color; and there was no error in overruling the motion for a new trial.. Judgment affirmed. All the Justices concur.