1. A suggestion by the plaintiff in error of a diminution of the record will not be entertained when based on an allegation that certain material portions of the documentary evidence, specified therein, were through inadvertence omitted from the brief of evidence, it not being suggested that the brief of evidence appearing in the record was not the true copy of the approved brief on file; the office of such suggestion being to perfect the record so that it may correspond with the original on file in the office of the clerk of the trial court. Clark v. State, 110 Ga. 911 (36 S.E. 297).
2. Merely that there are conflicts in some portions of the evidence is not sufficient cause for reversing a judgment directing the verdict; the rule being that, notwithstanding these, the provisions of the Code, § 110-104, are not violated if on the controlling issue the conflicts are immaterial, and, taking the most favorable view of the evidence, the verdict is still demanded. Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (35 S.E. 777); Skinner v. Braswell, 126 Ga. 761 (55 S.E. 914); Gillen v. Coconut Grove Bank Trust Co., 172 Ga. 908 (159 S.E. 282); Summer v. Strayhorn, 186 Ga. 755 (199 S.E. 108).
3. Objections presented for the first time in the brief for the plaintiff in error, that the court erred in including in the decree a provision that a certain deed be canceled, can not be considered in the absence of any *Page 596 assignment of error on the decree itself, the exceptions relating only to certain interlocutory rulings, the direction of a verdict, and to the refusal to grant a new trial.
4. A possession which originated under the relation of landlord and tenant can not be the basis of a prescriptive title against the landlord and those claiming under him. Dasher v. Ellis, 102 Ga. 830 (30 S.E. 544); Coates v. Jones, 142 Ga. 237 (82 S.E. 649).
5. Possession of land remaining with a grantor and never surrendered will be deemed to be held under the grantee. Such possession will be construed as consistent with the grantor's recorded deed, and is not notice to an innocent purchaser from the grantee of any mistake in the deed whereby a larger tract was inadvertently conveyed than the parties to the deed intended. Malette v. Wright, 120 Ga. 735 (48 S.E. 229).
6. Under the circumstances stated above, such possession, although remaining with the grantor and never surrendered, is not deemed adverse to the title of his grantee, and a prescriptive title in favor of the grantor can never ripen under such possession. Jay v. Whelchel, 78 Ga. 786 (3 S.E. 906); Melson v. Leigh, 159 Ga. 683 (126 S.E. 718). See Rucker v. Rucker, 136 Ga. 830 (72 S.E. 241).
7. The special grounds of the motion, although not expressly abandoned, are not argued in the brief of the plaintiff in error. These relate to rulings on admissibility of evidence. They have been examined, and they present no sufficient ground for granting a new trial.
8. The evidence demanded the verdict. It was not erroneous to refuse a new trial.
No. 14448. MARCH 11, 1943. J. T. Stepp filed petition against R. N. Stepp and John Stepp, residents of Hall County, and A. N. Stepp, a resident of Fulton County, Georgia, alleging that the defendants and their agents, employees, and hirelings are trespassing upon and cutting and removing timber from a described tract of land which petitioner claims belongs to him under a deed executed by N. T. Stepp on February 20, 1922, and praying that they be enjoined from continuing to commit such acts of trespass, and that he be awarded damages therefor. He alleged that he had owned and been in open, notorious, and adverse possession of the described tract of land ever since the execution of his deed above referred to.
The defendants answered, denying that the plaintiff is in possession as owner of said land, and alleging, that the land is the property of A. N. Stepp by virtue of a deed from the Equitable Life Assurance Society of the United States, dated October 12, 1939, which deed includes the land claimed by the petitioner; that any right that he had to occupy or use the property for the past *Page 597 seven years was that of a tenant and lessee of the Equitable Life Assurance Society; that the term of his lease and tenancy expired on January 1, 1940; that the defendant John Stepp was likewise a tenant and lessee of the insurance society; and that petitioner has illegally trespassed upon said land, cutting timber therefrom and attempting to till the soil thereon. They prayed that he be enjoined from continuing such acts of trespass.
On the trial the court directed a verdict in favor of the defendants, and decreed that the deed under which petitioner claims be canceled as a cloud on the title of A. N. Stepp. J. T. Stepp excepted to that direction and decree, and to the denial of a new trial. Mere occupancy of land for twenty years will not give the occupant title thereto. The possession must be adverse. There are some situations in which the law says a person can not prescribe. Two of such conditions are shown by this record to exist. When either is present, there can be no adverse possession in the one who subsequently claims title by reason of his being in actual possession, even though his original entry be under a deed.
The case on the merits is controlled by the application of the principles stated in headnotes 4, 5, and 6. The plaintiff's insistence is that the evidence on some of the material issues was in conflict, made so by his testimony. The record has been checked and rechecked in order to see whether such contention is well founded. When a party relies on his own testimony in order to prevail, he has no just ground of complaint if, after scanning it carefully, without indulging any presumption in his favor, or supplying any gaps appearing therein, a court viewing it as a whole reaches the conclusion that it is insufficient to make out his case. Compare Baggett v. Trulock, 77 Ga. 369 (3 S.E. 162); Burkhalter v. Oliver, 88 Ga. 473 (14 S.E. 704); W. A. Railroad Co. v. Evans, 96 Ga. 481 (23 S.E. 494);Freyermuth v. South Bound R. Co., 107 Ga. 32 (32 S.E. 668); Southern Bank v. Goette, 108 Ga. 796 (33 S.E. 974);Horne v. Peacock, 122 Ga. 45 (49 S.E. 722). Counsel for the plaintiff contend that the case of Malette v. Wright,120 Ga. 735 (supra), relied on for the ruling in the fifth headnote, has by later cases been so distinguished and limited as to have *Page 598 been practically shorn of its authority as a precedent. While the case was distinguished in Bridger v. Exchange Bank, 126 Ga. 821 (56 S.E. 97, 8 L.R.A. (N.S.) 463, 115 Am. St. Rep. 118), and in Todd v. Lewis, 169 Ga. 1 (149 S.E. 562), and inKent v. Simpson, 142 Ga. 49 (82 S.E. 440), it was said to stand on its own special facts, and in Simpson v. Ray,180 Ga. 395 (178 S.E. 726), that being based on its own particular facts, it would not be so extended as to bring it in conflict with the general rule that actual possession is notice to the world of the right or title of the occupant, — nevertheless, inChestnut v. Weekes, 180 Ga. 701, 706 (180 S.E. 716), it was said of Malette v. Wright, supra, that it was in harmony with other cited cases; and after referring to the fact that there were two lines of authority on the question, the court added that this State had adopted the rule found in Jay v.Whelchel, supra, Malette v. Wright, supra, Johnson v.Hume, 163 Ga. 867 (137 S.E. 56), and Rimes v. Floyd,168 Ga. 426, 428 (148 S.E. 86). The Rimes case, a full-bench decision, squarely supports the ruling in Malette v. Wright. While the Malette case has not always met with commendatory references, the last being in Chandler v. Georgia ChemicalWorks, 182 Ga. 419, 426 (185 S.E. 787, 105 A.L.R. 837) it is believed that the ruling for which it was cited is sound.
The documentary evidence introduced by the defendants made applicable the principles first above referred to, and demanded a finding in their favor; and in our opinion the evidence as a whole was not sufficient to present any issue to go to the jury.
Judgment affirmed. All the Justices concur.