Case-Fowler Lumber Co. v. Brown , 154 Ga. 175 ( 1922 )

Gilbert, J.

On the trial of the case the court charged the jury as follows: “He alleges that the north line of his line is a well-designated line, being a line east and west through a point one hundred yards north of Y. A. Clegg’s old miller’s house. He brings that contention in issue; but the court charges you as a matter of fact, based on the law and the evidence, that that line is to be regarded by the jury as the true line on the north side of plaintiff’s land; and if the defendants crossed that line and took any trees south of that line, then they were trespassers and were liable to him as trespassers, and the only question for you to determine in this case is the amount of damage done to him by the defendants, either or both of them.” In the motion for a new trial error is assigned on this charge, as follows: “ (a) The court in said charge instructed the jury where the north line of S. B. Brown’s plantation is located, when there was a conflict in the evidence as to the location of said line. (5) The said charge withdrew from the jury consideration of the question of whether S. B. Brown owned any title to said land south, of said line, when, as movants contend, there was no evidence showing that S. B. Brown had any legal title to said property, or that he had been in possession under any color of title or by prescription for a sufficient length of time to have ripened into a title.” The entire controversy turned upon the question of whether the plaintiff owned the land upon which defendants were cutting timber on lots 49, 60, and 85 in the first district of Lee County. These lots lie adjacent to one another in an east and west line as follows:

The plaintiff contended that he had title to all of these three lots south of an east and west line “ drawn from a point 100 yards north of Y. A. Clegg’s old mill -house, and running east and west across said lots 60, 85, and 49.” He alleged that the defendants were entitled to cut the timber north of said east and west line. The evidence, without conflict, showed that all of the lands in question, as well as other lots of land, were owned about 1880 and prior thereto by Y. A. Clegg, who died leaving a will, under the terms of which the land was devised to his daughter, Mrs. Hooks, for life, and after her death to her two children W. W. Hooks Jr. and Janie Lou Hooks, both of whom, at the death of their mother, in 1889, were minors. Mrs. Hooks, during her life, executed a mortgage to S. B. Brown, which was subsequently foreclosed, and at the sheriff’s sale the land was bought in by the mortgagee. Mrs. Hooks died, and about the year 1902 or 1903 her minor children named above, through their father as next friend, brought suit against Brown for the recovery of the land. The suit resulted in a verdict and judgment for the plaintiffs for a number of lots of land, including the lots involved in this case; and the decree restored to the minors, among other lots and parts of lots, the following: “ one hundred and one and one half acres off the east side of lot No. 49, 186 1/2 acres off the northern part of lot No. 60,” and “the north half of lot 85.” On exception to the judgment of the trial court the case was brought to this court, where the judgment in favor of the minors was affirmed. Brown v. Hooks, 133 Ga. 345 (65 S. E. 780). Subsequently the lands were partitioned between the two minor children, and the lands involved in this case passed, under the award, to W. W. Hooks Jr., who afterwards executed a deed to G. M. Forman to secure a loan. On failure to pay the amount due, Forman sued his claim to judgment. Execution was levied upon the land, and the same was sold at a sheriff’s.sale. In the deed to Forman and in the decree rendered in his favor the portions of the lots named were described as stated above. At the sheriff’s sale these lots, together with other lots, were bought in by S. B. Brown and Empire State Guano Company, Brown causing the sheriff to include in his deed, after the description theretofore used, the additional words “the south line of said tract being a line 100 yards north of V. A. Clegg’s old miller’s house, running east and west across said lots Nos. 60 and 85, which line was announced by the sheriff, at the sale, as being the dividing line between the S. B. Brown lands on the south, and the above-described land, and was agreed on between W. W. Hooks Jr. and S. B. Brown when said Hooks took possession of the same in said county.” Brown and the Empire State Guano Company subsequently sold the land to R. E. Forrester, who in turn sold to the defendant Wallace. In each of the latter deeds the same provision was included as to the line on the south running 100 yards north of Clegg’s old miller’s house, as in the sheriff’s deed to Brown and the guano company. It was contended by the plaintiff that his title to the portions of land claimed was based on prescription, his possession dating back to the purchase under the mortgage foreclosure against Mrs. Hooks, the mother of the plaintiffs. It is not decided whether Brown held title to any parts of lots 60 and 85 south of the said east and west line. The defendants are estopped by the recitals in the deeds from claiming any of such land south of said line in lots 60 and 85. On the other, hand the deeds show that Brown had no title to any part of the east half of lot 49. The charge quoted above was clearly error, because of its bearing on lot 49. The plaintiff recovered a judgment against the defendants for timber cut on lot 49, and a decree that the line was as claimed by plaintiff. Under the pleadings tbe plaintiff was claiming that the “ east and west line ” extended through lots 60 and 85 through the eastern portion of lot 49. The charge complained of, construed in connection with petition, directed the jury to find that the line between the plaintiff and the defendants ran through all three of the lots at the point claimed by the plaintiff. By reference to the deeds from Brown and the Empire State Guano Company to Forrester, and from Forrester to Wallace, and the lease of Wallace to the Case-Fowler Lumber Company, it will be observed that all of the east half of lot 49 was granted in each instance. The ref-' erence to the “ east and west line ” only stated that it ran through lots 60 and 85. The omission to state in the deed that it ran through lot 49 furnishes a clear inference that the grantor did not intend that the conveyance should have that effect. Under the instructions complained of, the jury must have included in their verdict damages for cutting timber in the east half of lot 49 south of the aforesaid east and west line. This was contrary to the evidence and hurtful to the movants, requiring the grant of a new. trial.

The remaining headnotes do not require elaboration.

Judgment reversed.

All the Justices concur.