Garbutt Lumber Co. v. Camp

Hill, J.

(After stating the foregoing facts.)

1. This is the second appearance of this case here. It will be found reported in 129 Ga. 411 (58 S. E. 870). The case turns largely on prescriptive title. The possession began in J. B. Withers, who held possession less than the time necessary to ripen the prescription. Then Withers made a deed to the property in controversy to S. J. Barnes, dated January 1, 1897. Barnes and others made a “timber lease” to R. J. & B. E. Camp, the plaintiffs in the court below, on January 20, 1902, conveying the timber on the land in controversy for sawmill and cross-tie purposes. Possession, under which prescription ripened, was in Barnes and the Camps. Several deeds and papers which purported to convey the title to the land, as well as an abstract of title and certain memoranda, were offered in evidence and admitted by the court over objection of defendant’s counsel. Most if not all of these documents were' not admissible as muniments of title, but as bearing on the subject of good faith on the part of the plaintiffs in purchasing the timber, which is one of the elements of prescription. Withers testified that the memoranda and chain of title came to him together, and that he thought he was getting a genuine title, or he would not have paid for it. Barnes testified, that certain of the deeds and grants were delivered to him when he bought as agent for his wife; that they were not all the deeds that he received; and that he did not know anything about the originals of two other deeds mentioned, but he knew that he had bought them and they were all there when he bought. “They were with the full chain.” Also, that he delivered the papers to the agent of one of the Camps. From this and other evidence it will be seen that a number of the papers introduced were before the prescribing parties at the time they purchased and relied on by them in connection therewith; and while they may have been inadmissible as tending to prove title, they were admissible as bearing on the good faith of the prescribes. If any of these papers were inadmissible, their admission was not of sufficient materiality to require a reversal. The presiding judge did not submit to the jury at all the question of title by chain, or otherwise than by prescription; and certainly most if not all of the papers offered were admissible in that connection as bearing on the question ^of good faith; and if any of them should have been rejected, their reception was not sufficiently material error to require a new trial, in the light of the charge which directed the jury to find that a certain deed attacked for forgery should be declared to be such, and confined them to the contention as to whether the plaintiffs had acquired prescriptive title.

2. It was not error for the court to charge the jury as follows: “An inchoate prescriptive title may be transferred by a possessor to a successor, so that the successive possessions may be tacked to make out the prescription.” This charge of the court embodies 'a correct principle of law on this subject; and if a fuller charge, or an amplification of the principle to suit the facts of the ease, was desired, a request therefor should have been made.

There was no error in the failure to charge the jury as contended in the’ 13th and 14th grounds of the amended motion for a new trial, in the absence of a request to so charge. The court had charged the jury that it took seven years continuous adverse possession to ripen into prescription, and that the possession must be '“public, continuous, exclusive, uninterrupted and peaceable, and accompanied by a claim of right, and such continued for and during the term of seven yeaTS.”

There was no error in the following excerpts of the court’s charge, in the absence of a request to charge more fully on the subjects excepted to: “The court instructs you further, that the working and operating of timber for turpentine purposes may amount to possession which will ripen into prescription, being dependent upon the character of the work and the continuity thereof.” And, “ Whether or not the cultivation of a turpentine farm upon a tract of land is such an occupancy as may be the basis of a prescriptive title to the land itself is a question of fact dependent upon the character of the possession, the extent of the visible signs of occupancy, and its continuance.” The court concisely but correctly charged the jury the law bearing on the issues involved in the case; and if* a fuller charge was desired by the defendant, a request should have been made therefor. While the charge was meager in some respects, we can not say that it was error.

3. It is insisted that the deeds and other papers admitted by the court in evidence on the question of the good faith of the plaintiffs were calculated to influence the jury in favor of the plaintiffs’ case. No request to charge the jury on the subject of limiting the deeds to the question of good faith was made, nor complaint’that the court refused to so charge the jury. If the deeds and papers were admissible, and the defendant desired a charge to the effect that the deeds and other papers admitted were solely for the purpose of showing the good faith of the plaintiffs when they bought the timber in controversy, and the jury should consider them for that purpose alone, a request to so charge should have been made. McGruder v. State, 71 Ga. 864 (2 a). While the evidence was somewhat meager on the question of possession, it was sufficient to authorize the verdict.

Judgment affirmed.

All the Justices concur.