1. A perfect legal title is not essential to a right of recovery for trespass for the cutting of timber on land; and the holder of written evidence of title which is color of title, who has actual possession of the land and the right of possession of the entire tract described in such written evidence (color) of title, has a right to sue in trespass any one who interferes with his actual possession or his right of possession by cutting timber on the land.
2. One who is a bona fide purchaser and in possession of land, holds adversely to all the world, may disclaim the title under which he entered, and set up any other title against a stranger.
3. The defendant's title is not derived from, but is in antagonism to, that of the plaintiff. The defendant is not a privy in estate with the plaintiff. He is a "stranger." Neither the plaintiff nor the defendant owes any duty to the other, nor is either estopped from making any claim against the other.
4. The general charge, when considered in its entirety, is not subject to any of the objections urged by the defendant.
DECIDED JUNE 7, 1946. REHEARING DENIED JULY 23, 1946. On October 24, 1945, the case of M. H. Jones versus E. E. Swinson, for damages from the cutting of timber by the defendant as an alleged wilful trespasser, was brought to trial.
The evidence authorized the finding by the jury: That the father of the plaintiff died in 1905; that thereafter during the same year the land in question from which the timber in question was cut was set apart to the plaintiff's mother, Mrs. Nannie C. Jones, as a year's support; and that on January 1, 1914, the plaintiff's mother executed to the plaintiff, M. H. Jones, the following written instrument: "State of Georgia, Laurens County. Made this day of January 1914, between Mrs. N.C. Jones and State of Georgia, party of the first part, and the M. H. Jones limited, party of the second part, witnesseth, that the said party of the first part, for and *Page 110 in consideration of the sum of $3000 to her in hand paid at or before the sealing and delivery of these premises, the receipt whereof is hereby acknowledged has granted, bargained, sold and conveyed, and by these premises does grant, bargain, sell and convey to the said party of the second part, its successors and assigns, the following described property situated, lying and being in the County of Laurens and State of Georgia, to wit: All that parcel of land being known as Mrs. N.C. Jones Home Place. This day of January first 1914. I hereby agree with M. H. Jones to have and to hold the said bargained premises with all and singular the rights, members and appurtenances thereof to the same being, belonging or in anywise appertaining to the only proper use, benefit and be hoof of the said party of the second part, its successors and assigns, in fee simple, hereby releasing the said M. H. Jones all rights to my home place to pay all the debts alone off and to pay all bank notes and all the taxes. Then, I agree to give the said M. H. Jones a warranty deed. — N.C. Jones." The evidence also authorized a finding: That the plaintiff went into possession under this document, has enjoyed its profits and benefits, and has paid all the taxes up until the time he was testifying, which was in October, 1945; and that by June 17, 1919, he had paid all the indebtedness of $3000 and all taxes, as agreed under the document dated January 1, 1914.
On a former trial of this case, which was reviewed and reversed by this court in Swinson v. Jones, 72 Ga. App. 147, the plaintiff claimed title under a security deed dated June 17, 1919, and the material parts of his testimony necessary to a decision in that case will be there found. On the second trial of the case, which is now under review, the plaintiff disclaimed title under the security deed of 1919, and set up title under the deed of January 1, 1914. He testified: "I was present when the [1914] deed was signed and saw my mother sign it. That is the same $3000 mentioned in the security deed. As to why I got a security deed in 1919 if this deed was written and signed in 1914, it took that time to pay it off. I paid it when I got the deed, but this is a contract to turn it over to me when I paid it off. That is the paper she gave me for protection for what I put in the place. I paid the place out in 1919. I have known of the existence of the deed made in 1914 ever since she gave it to me. I didn't say anything about the deed made in *Page 111 1914 when this case was tried before, because I sent this paper to Emory Baldwin, and I thought it was still in that file which he lost. As to my testifying in the other trial that I did not have a warranty deed to this land, I don't recall that paper dated January, 1914 [being] a warranty deed. I call it an agreement or contract for me to do those things, and then she was to give me that deed. I misunderstood it, if I swore before `That a security deed from my mother to me, dated June 17, 1919, to secure a loan of $3000 is the deed I claim title under, but I came in possession of it before then. I recognized her (Mrs. Nannie C. Jones') title by accepting that deed to it, as long as she lived.' I might have sworn before that: `There has been no administration on her (Mrs. Nannie C. Jones') estate. When she died, Emory Baldwin promised to fix the deed, and they all promised to sign it, and he never did do it, and that is the way it was left.' If I swore that, it is not correct. She was to give me a warranty deed when I paid it out. The following statement is also wrong: `This land was set aside for a year's support in 1905. She held this land as a year's support until her death, and at her death I was to get an absolute title from my brothers and sisters. I paid it out of the loan. My mother died in 1940. I will get the deed at any time I want it.' The following is correct as to my testimony on the other trial: `I paid it out of the loan the date that security deed was signed. I put it on record, the date that security deed was made. None of the children have claimed any part of it. I had it fixed that way so if any of them got dissatisfied in five years, they could pay their part. I testified on the other trial that: `All of us were living at home at the time this land was set apart as a year's support in 1905,' and `up until the time that my mother moved away, me and my brother, Clint Jones, lived there with her.' At the time I got the security deed, I knew that I had the deed of January, 1914. My title to this land was derived from my mother, Nannie C. Jones. The title I claim to this property was obtained from my mother, since she got this property as a year's support. At the time this deed was made in 1914. . ."
E. E. Swinson, the defendant, testified: "I knew Mr. Jones' father and his mother for many years, but I haven't known Mr. Jones but about 20 years. I have been familiar with the Tarpley place [which Swinson purchased] 67 years. I knew all about the *Page 112 line, but not the part that was up next to Mr. Jones. . . I contended that the line was in one place and Mr. Jones contended it was in another. I cut the timber down to where I said my line was. I don't know how much I cut. . . Later this line was surveyed out, and the processioners disagreed with my contention where the line was located." Under the processioners' proceeding, filed December 23, 1938, and decided on February 6, 1942, and reported in Swinson v. Jones, 66 Ga. App. 598 (18 S.E.2d 646), the line as contended by the plaintiff was determined as the correct line. The landline in question was the one between the "Tarpley place," which Swinson had purchased, and the "Jones place," referred to above. R. A. Watson testified as to matters before the cutting of the timber: "I pointed out to Mr. Ed Swinson [who was representing the defendant in the cutting of the timber] the dividing line [the line in question between the Tarpley place and the Jones place] between these lands in the `30's, sometime along then. I walked the line and showed it to him. . . I know what line was pointed out to Mr. Swinson when he bought the land from Mr. Tarpley." Ed Swinson testified for the defendant: That Watson attempted to show him the line in question, but could not tell him anything about it, that he got on a boat and came back to the ferry; and that "we had cut timber nearly to the line" which was contended for by the defendant and which the courts later decided was the wrong line. M. H. Jones, recalled, testified: "I am familiar with the line that Mr. Rawls Watson described here this morning. That is the same line that the courts held was a true and correct dividing line between me and Mr. Swinson. That was about 300 yards across my land from the line Mr. Swinson had surveyed and established, where he cut the timber."
The plaintiff's testimony and that of other witnesses authorized the jury to find that the defendant, Swinson, was a wilful trespasser, and that the actual value of the timber cut and hauled away was $15 per thousand feet at the time and place where the timber was cut by the defendant. The plaintiff testified that the amount of the timber was 40,000 feet; that he and a Mr. Wood, who is at present in the Army and is not available to testify, after the timber was cut measured the stumps from which the timber was cut and the tops of trees lying on the ground. C. S. Jones, an expert, brother of the plaintiff, testified that he had made "a cruise or *Page 113 estimate" of the amount of timber in question on the land in question before it was cut; and that, on measuring stumps and tops of trees after the timber was cut, his estimate of the timber cut was "around 40,000 feet." Pittman, who was working for the defendant, testified that they did not cut across the line, but only cut on the Swinson side of the line. 1-3. This case has been to this court before, and is reported in Swinson v. Jones, 72 Ga. App. 147 (33 S.E.2d 376). The evidence there showed without dispute that at the time of the filing of the action on October 27, 1938, the title to the timber was not in the plaintiff, M. H. Jones, but was in his mother, Mrs. Nannie C. Jones, the plaintiff only having a security deed signed by his mother, dated June 17, 1919, in which his mother reserved the title in herself. In that case it was stated that the present suit was instituted in 1935, and that prior to the act of 1939 (Ga. L. 1939, p. 340), the holder of a security deed without more was not authorized to institute such an action as the one then under consideration; and that the plaintiff was not entitled to recover on possession alone, for the reason that the evidence did not show that he was in the actual possession of the portion of the land from which the timber was cut. The case was reversed because there was no right of action in the plaintiff at the time of the filing of the suit. On the next trial of the case, now under review, the plaintiff contended that he did not rely upon title based on the security deed, dated June 17, 1919, as he had done in the former trial, but relied on a title based upon the above-quoted written instrument dated January 1, 1914. He disclaimed title under the security deed, which had reserved title in the mother, and set up title based upon the written instrument dated January 1, 1914, which conveyed title to him. The plaintiff contends that, at the time his mother signed such instrument, he went into possession of the land in question and has been in possession continuously since. The defendant contends that the plaintiff was bound by the recitals in the security deed dated in 1919, upon which the plaintiff testified in the former trial that he based his title, and could not now contend and testify that he had based his title upon a written instrument dated in 1914. *Page 114
"A recital of one deed in another or of a fact in a deed binds the parties and those who claim under them. It is an estoppel which binds parties and privies — that is, privies in blood, privies in estate, and privies in law. Recitals in a deed, however, do not bind persons claiming by an adverse title or those who claim by title anterior or paramount to the deed. Strangers to a deed have no right to set up its recitals as estoppels." 19 Am. Jur. 626, § 28. In this case, the defendant is a stranger to the deeds of 1914 and 1919, made to the plaintiff by his mother, and can not set up the recitals in such deeds as an estoppel. The defendant's title is not derived from, but is in antagonism to, that of the plaintiff. The defendant is not a privy in estate with the plaintiff, and neither the plaintiff nor the defendant owes any duty to the other; nor is either estopped from making any claim against the other. Hussman v. Durham,165 U.S. 144 (17 Sup. Ct. 253, 41 L. ed. 664). In Palmer v.Pennington, 179 Ga. 76 (175 S.E. 380), it is stated: "`It is a well-settled principle of law that one may have the . . right of possession and the actual possession; and as long as this possession continues, any interference therewith, even by the person having the title, will give him who has the right of possession and actual possession a right of action therefor.'Connally v. Hall, 84 Ga. 198 (10 S.E. 738); Ford v.Harris, 95 Ga. 97 (2) (22 S.E. 144). Furthermore, the holder of the bond for title in this case had actual possession of a portion of the land and the right of possession of the entire tract described by his bond for title, and accordingly, had a right to sue in trespass any one who interfered with his actual possession or his right of possession." The instant case is differentiated from Swinson v. Jones, 72 Ga. App. 147 (supra), in that in the latter case the plaintiff based his title to the timber (and so testified) upon the security deed dated in 1919, in which his mother, the grantor, had expressly reserved the title to the land in herself; whereas in the instant case the plaintiff based his title (and so testified) upon the written instrument dated in 1914, which, whether it was a complete title or not, was at least a color of title, and the jury were authorized to find in the instant case that the grantee in the document dated in 1914 had actual possession of the portion of the land in question, and had the right of possession to the entire tract described by this document, and accordingly had a right to sue the defendant in trespass. *Page 115 "Where the plaintiff `relies upon possession alone as a basis for recovery, it must be actual possession of that portion of the tract upon which the alleged wrong was committed.' . . Where one holds by bare possession, obviously such possession will not be extended by construction, for the simple reason that there is in such case no limitation to fix such boundaries." Palmer v.Pennington, supra. "Even where one holds land by color of title alone, the law construes the possession as extending to the full boundaries of the tract, as described in the color of title."Palmer v. Pennington, supra. Where one is a bona fide purchaser and in possession of land, such a party holds adversely to all the world, may disclaim the title under which he entered, and set up any other title against a stranger. Croxall v. Shererd, 72 U.S. 268 (18 L. ed. 572); Burr v. Toomer,103 Ga. 159, 161 (29 S.E. 692). Here it was permissible for the plaintiff to disclaim title under the security deed of 1919, and claim title under the written instrument of 1914, under which he went immediately into possession of the land on which the timber in question was growing.
The evidence in the second trial, now under review, authorized a finding that the plaintiff had a cause of action at the time the action was instituted, and a further finding that the evidence supported the verdict against the defendant for $600 damages for timber unlawfully cut, upon the theory that: "Where plaintiff recovers for timber cut and carried away, the measure of damages is: 1. Where defendant is a wilful trespasser, the full value of the property at the time and place of demand or suit, without deduction for his labor or expense." Code, § 105-2013 (1).
4. The charge was authorized by the evidence, and (1) since the evidence on which the plaintiff seeks to sustain the verdict in his favor was admitted without objection, and (2) if objected to, the pleading might have been amended to authorize such proof, the exception that the charge was not authorized by the pleading and the evidence is too late after verdict and can not be made a ground in a motion for new trial in the trial court, or a ground in the bill of exceptions in this court. City National Bank c.Co. of Miami v. Orr, 39 Ga. App. 217 (146 S.E. 795);Metropolitan Life Insurance Co. v. Hale, 47 Ga. App. 674 (171 S.E. 306); Parsons v. Wilson, 22 Ga. App. 279 (95 S.E. 1009); Howard v. Barrett, 52 Ga. 15; Rocker v.DeLoach, 178 Ga. 480 (173 S.E. 709). *Page 116
(a) The general charge, when considered in its entirety, embraced the general principles of law applicable to the case. If any amplification of the general principles contained in the charge was desired, it should have been made the subject of an appropriate timely written request. Tabor v. Macon Ry. c.Co., 129 Ga. 417 (59 S.E. 225). The charge was not at variance with the law laid down in Swinson v. Jones, 72 Ga. App. 147 (supra), as contended by the defendant, for in that case the plaintiff expressly claimed title under the security deed dated in 1919, reserving title in the mother of the plaintiff, whereas in the second trial, now under review, the plaintiff expressly disclaimed title under such security deed of 1919, and set up another title upon a written instrument, dated in 1914, conveying the title to him.
(b) The evidence in this case related to possession, both actual and constructive, for over 20 years, and to a written instrument under which the plaintiff testified he held possession. The judge charged on how a completed title by prescription could be obtained by actual possession alone, and how it could be obtained under color of title, and then in effect charged the jury the principles stated in Palmer v.Pennington, supra, that a perfect legal title was not essential to a right of recovery for trespass upon the land in question for the cutting of timber thereon, and that the holder of written evidence of title, who had actual possession of a portion of the land and the right of possession of the entire tract described in the written evidence of title, had a right to sue in trespass anyone who interfered with his actual possession or his right of possession by cutting timber thereon. The charge was not confusing and misleading to the jury for the reasons urged by the defendant.
The judge did not err in overruling the motion for a new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.