1. The controlling issue in this case was title to a tract of land. The parties claimed under a named person as common grantor. The defendants' evidence included a deed executed by the alleged common grantor, conveying the land to one of them; and this deed was not attacked in any manner. The plaintiff did not show any conveyance out of the common propositus, either to herself or to any person under whom she claimed. No question of title by prescription was involved. *Page 724 The jury returned a verdict for the plaintiff, and the defendants' motion for a new trial was overruled. Held, that the verdict for the plaintiff was unauthorized, and a new trial should have been granted on the general grounds.
2. A sheriff's deed conveying the land to the county, in pursuance of a tax sale in which the property was sold as that of a named person as defendant in tax fi. fa., and a subsequent deed made by the county commissioners to the same person who was the defendant in fi. fa. or tax debtor, did not tend to show any title in the last named grantee.
3. There was no evidence to authorize an inference that the plaintiff's claim of title was connected in any way with a sale of the property in dispute under a lien or a deed to secure debt that was in existence as against the alleged common grantor, before deed of the latter to the defendant; and for this reason it was error to instruct the jury upon such issue.
4. The court erred in overruling the motion for new trial.
No. 14630. OCTOBER 12, 1943. On June 27, 1942, Mrs. Alice Orr Guill filed an equitable petition against T. H. Holliday and Mrs. T. H. Holliday, alleging default by the defendants as to payment of rent under a described lease, the commission by them of various acts of trespass, their continued occupancy of the leased premises in violation of the lease, and a "pretended claim" by them to twenty-five acres of land embraced therein. The petitioner prayed that the defendants be enjoined from further occupying the leased premises, and from cutting and removing timber, and that she have judgment in a stated amount as damages. By amendments she prayed that the lease contract be canceled, and "that the 25-acre tract of land in dispute be settled" as between the parties.
The defendants answered, asserting title to the tract referred to in the petition, and alleging that it was not included in the lease, but claiming no right or title to any other land. It appears from the record that the defendant Mrs. Holliday before her marriage was Carrie E. Orr; that she and the plaintiff are daughters of Mrs. Rosa S. Orr, deceased, and that both claim the 25-acre tract under their mother as a common propositus; also that they have a sister named Clara Mae Orr, whose name appears in some of the deeds that were introduced in evidence. It appeared from the evidence that the defendants had moved a storehouse from land which they admitted was included in the lease, and placed it on the 25-acre tract claimed by Mrs. Holliday, and that they had also built a *Page 725 dwelling house and made other improvements on this tract. Upon the trial the plaintiff waived the prayer for damages, and the judge submitted certain questions to the jury, all of which they answered in favor of the plaintiff. The jury returned also a general verdict for the plaintiff, after which the court entered a decree, enjoining the defendants as prayed, and "vesting" title to the 25-acre tract in the plaintiff. The defendants' motion for new trial was overruled, and they excepted.
The plaintiff introduced in evidence deeds conveying described lands which may be referred to generally as the Orr place, meaning thereby the tract formerly owned by Mrs. Rosa S. Orr, the alleged common propositus. The plaintiff contended that these lands included the 25-acre tract in controversy, and that her title thereto was superior to the claim of Mrs. Holliday. The plaintiff's chain of title consisted of the following: (1) Deed from S. L. Miller to Rosa S. Orr, dated December 19, 1907, reciting a consideration of $842, to be paid as follows: "$317 paid this day, and the balance to be paid to the John Hancock Mutual Life Ins. Co. due Nov. 1, 1911, being a loan deed on this and other land, the said Orr to pay interest on said $525 at the rate of 6% per annum, payable each year on the 1st of each year." (2) Deed from Elizabeth Johnson to Clara Mae Orr, dated October 17, 1928. (3) Deed from Clara Mae Orr to Mrs. Alice Orr Guill (the plaintiff), dated November 30, 1935, conveying a one-half undivided interest. (4) Deed from Clara Mae Orr to J. E. Burns, dated October 24, 1936, conveying a one half undivided interest. (5) Deed from J. E. Burns to Mrs. Guill, the plaintiff, dated April 25, 1938, conveying one-half undivided interest. (6) Quitclaim deed from Wallace E. Pierce and Seba M. Lewis, executors of the estate of Elizabeth Johnson, conveying "the land as described in the warranty deed from J. E. Burns to Mrs. Alice Guill, dated" April 25, 1938, and containing a recital as follows: "This conveyance is made subject to the right of Clara Mae Orr . . to have said property conveyed to her . . upon the payment of a loan which she obtained on the above described land, as evidenced by a deed dated the 17th day of October, 1928."
The plaintiff introduced also two deeds as follows, purporting to convey only the so-called 25-acre tract: (1) Sheriff's tax deed to Laurens County, dated January 1, 1935. (2) Deed from Laurens *Page 726 County to Clara Mae Orr, dated May 13, 1936. These two deeds were admitted in evidence over objection.
The plaintiff introduced also the lease contract between the plaintiff as lessor and the defendants as lessees, dated December 13, 1938, describing a tract as containing 147 acres, more or less "and being known as the Dr. Orr place." It appears from the record that Dr. Orr was the husband of the alleged common grantor.
The defendants introduced only one muniment of title, consisting of certified copy of deed from Mrs. Rosa S. Orr to Mrs. Carrie E. Holliday, dated September 29, 1921, and duly recorded, purporting to convey the 25-acre tract in dispute. Both defendants testified that the land described in this deed was occupied by them and claimed by Mrs. Holliday. That the 25-acre tract so claimed by Mrs. Holliday was the identical land described in the deed from her mother, Mrs. Rosa S. Orr, was not disputed by the plaintiff; and, as stated above, the plaintiff and the defendants claimed under Mrs. Orr as common grantor.
The special grounds of motion for new trial, and other facts, are stated in the opinion, infra. We shall deal first with the general grounds of the motion for a new trial.
1. The controlling issue upon the trial was the question of title to the 25-acre tract to which the plaintiff, Mrs. Guill, and the defendant, Mrs. Holliday, asserted opposing claims. There were two defendants, Mr. and Mrs. Holliday, but their answer alleged title only in Mrs. Holliday. It is contended by the defendants that the verdict for the plaintiff was contrary to the evidence and without evidence to support it, and that a new trial should have been granted for this reason. No question as to prescriptive title is involved.
Although the plaintiff contends that this 25-acre tract was included in the land that she leased to the defendants, and introduced the lease in evidence, she prayed that the title to this tract be "settled," and did not invoke the rule that a tenant may not dispute his landlord's title. Code, § 61-107. It is true that when the defendants tendered in evidence certified copy of the deed from Mrs. Orr, the alleged common grantor, to Mrs. Holliday, counsel for the plaintiff objected on the ground, that "they are undertaking to dispute *Page 727 the landlord's title," but the court overruled the objection, stating that, "under their contentions, the 25 acres are not included in the tract," and the plaintiff appears to have acquiesced in this ruling. Accordingly, we shall treat the case as if the relation of landlord and tenant did not exist.
Since the plaintiff and Mrs. Holliday both claimed under Mrs. Rosa S. Orr, as common grantor, the test was as to which of them held the better title from her. Code, § 33-101; Wallace v.Jones, 93 Ga. 419 (21 S.E. 89). The deed from Mrs. Orr, conveying the 25-acre tract to Mrs. Holliday, was dated September 29, 1921, and was duly recorded. This tract was part of a larger tract then owned by Mrs. Orr, which may be referred to as the Orr place. The plaintiff sought to connect her claim with title in Mrs. Orr anterior to the conveyance to Mrs. Holliday, and the inquiry is whether she succeeded in doing so. The plaintiff's chain of title, as shown by the record, went no further back than 1928, and was not connected with the title of the alleged common propositus. "The mere fact that both parties claim under a common grantor does not dispense with necessity to show that the plaintiff has acquired title or an interest from the common grantor." First National Bank of Gainesville v. Harmon,186 Ga. 847 (3) (199 S.E. 223). The plaintiff's immediate grantors were Clara Mae Orr and J. E. Burns. In 1928 Elizabeth Johnson deeded the Orr tract to Clara Mae Orr. In 1935 Clara Mae Orr deeded an undivided half interest therein to the plaintiff, Mrs. Guill. In 1936 Clara Mae Orr deeded the remaining half interest to J. E. Burns. In 1938 J. E. Burns deeded this half interest to the plaintiff. There is nothing to show title from Mrs. Rosa S. Orr into Elizabeth Johnson, or into any other person under whom the plaintiff claims. The judge in submitting the case to the jury evidently proceeded upon the theory that the plaintiff's title was so connected in some way, and counsel for the plaintiff insists that the verdict is supported; but we have examined the record carefully, and can find no such connection. Therefore we must hold that the verdict for the plaintiff was unauthorized, and that the court should have granted a new trial on the general grounds.
2. The first special ground of the motion for a new trial assigned error on the ruling admitting in evidence, over objection by the defendants, a tax deed by the sheriff of Laurens County, which *Page 728 appeared to have been made under a tax fi. fa. against Clara Mae Orr, and a deed by Laurens County to Clara Mae Orr, both purporting to convey the land in dispute. The defendants' objection was as follows: "It appears on the face of them that they are simply deeds of redemption. It doesn't have a thing to do with Miss Clara Orr's title, directly or indirectly. If it was her duty to pay the taxes, she wouldn't have title by these deeds. It couldn't even be a circumstance in the case as to her title." The court overruled the objection, with the statement: "They are relevant as showing one-half undivided title to Miss Clara Orr. I admit them solely for that purpose. If she didn't have title prior to those tax deeds, the tax deeds wouldn't give her title." It was error to admit the deeds in evidence, over this objection. Taken together and as introduced, they were not relevant as showing any title or interest in Clara Mae Orr, as ruled by the judge. "One who is bound to pay the tax on property cannot strengthen his title by purchasing at a tax sale; such purchase shall be treated as payment." Code, § 92-8105. The same rule applies where after a sale for taxes the property is redeemed by the person liable therefor. Veal v. Veal,192 Ga. 503 (2) (15 S.E.2d 725).
3. In charging the jury as to the respective contentions of the plaintiff and the defendants and the law applicable thereto, the judge gave the following instructions in reference to the plaintiff's contentions: "If a person vested with the title to property executes a deed to secure debt, or during the ownership of such title permits tax liens to accrue against the property, and the title to such property is divested from the owner by virtue of their exercise of the power of sale in the deed to secure debt, or by sale of the property for taxes, that any conveyance on the part of the owner of such title after the execution of the deed to secure a debt or the accrual of such taxes would be ineffective as a conveyance of title as against such title as may have been acquired by a person under the deed to secure debt or the tax lien. In other words, gentlemen of the jury, for purposes of illustration, if at the time Mrs. Rosa S. Orr executed a deed, if she did execute a deed to Mrs. Holliday, there was any outstanding loan deed or other liability that resulted finally in the title legally going into a third party, and that the plaintiff's title comes from such third party, by virtue of that kind of a situation, that the defendant would not have title to the twenty-five *Page 729 acre tract." In the motion for new trial, "Movants aver that such charge was erroneous and injuries to them, because there was no evidence or pleading to be the basis of this part of the court's charge to the jury, for the reason that movants' deed to the twenty-five acre tract, which was admitted in evidence, was dated the 29th day of September, 1921, and the plaintiff introduced no evidence, oral or documentary, of any conveyance going out of the common grantor, Mrs. Rosa S. Orr." The record discloses no evidence whatever that the plaintiff at any time acquired title from the common grantor through sale under a loan deed, or sale for taxes accruing against such common grantor, before execution of the deed to Mrs. Holliday. The foregoing charge was unauthorized, and erroneous, as insisted. Robertson v.Abernathy, 192 Ga. 694, 698 (16 S.E.2d 584).
One of the grounds of the motion for a new trial complained of refusal of the court to declare a mistrial, because of the introduction and withdrawal by the plaintiff of certain documentary evidence, and other occurrences, which need not be stated. Since the matters complained of in this ground are such as will not likely be repeated on another trial, it is unnecessary to rule upon this ground. Again, since we have held that a new trial should have been granted on the general grounds, it is not determined whether the other errors complained of would be sufficient within themselves to require a reversal.
Judgment reversed. All the Justices concur.