Administrators of Jones v. Nunn

12 Ga. 469

Opinion

By the Court.

Ni.sbet, J.

delivering the opinion.

[1.] The question made here, grows out of the evidence, and it is necessary therefore to state it. The plaintiff below proved that his intestate, Harrison Jones, bought the premises in dispute from Lott Warren, Who had previously purchased from one Kenedy; that one Bassey went into possession, under a contract of purchase, and held the same under Jones, for several years, making improvements thereon by erecting a dwelling house and kitchen, and then moved away. The premises then remained unoccupied for four or five years, when Edmond Nunn went into possession, and resided on them several years, and rented them out several years. Edmond Nunn also made improvements on the lot to the value of several hundred dollars. He then sold the premises to one Ronaldson, but this sale was soon thereafter rescinded, the vendor — Edmond Nunn, giving as a reason for rescinding it, that he had taken the advice of counsel, and was informed that he had no title to the lot. Ronald-son went into possession, but moved away when his contract with Edmund Nunn was rescinded, and the defendant, Hawkins Nunn, moved on to the premises immediately thereafter, and was in possession when the suit was brought. It was also is evidence that the house and lot had been sold at Sheriff’s sale, but as whose property does not appear; and that whilst Edmond Nunn was in possession, he had’ said that he was willing to abandon the premises, if Jones would charge him .no rent. The plaintiff also read in evidence a deed for the premises from Lott Warren to Harrison Jones, dated in 1836.

The point in the case is this: was the plaintiff entitled to recover upon the possession of his intestate, as proven against the defendant, who entered without color of claim or title as an intruder ? The presiding Judge instructed the Jury that he could not. It is not questioned, but that the plaintiff in ejéetmení must rely upon the strength of his ^ own title, and not upon the want of title in liis adversary. And it is well settled, too, that a plaintiff in ejectment miay recover ujipn a prior possession, against a possession acquired by mete" entry. 5 Geo. R. 39. In this case it is not pretended that fhe defendant; ’Hawkins Nunn, went into possession under claim of title whatever. The point made by the defendant in error,' is that Janes, although he went into possession under his deeil from Warren, abandoned that possession voluntarily, and having so abandoned it, his representative cannot recover upon the strength of his prior pos session. In reply it is said, that to prevent a recovery upon prior possession, by abandoning it, the abandonment must be without any purpose of resuming it, and if there is the animus revertendi, the plaintiff may recover; and farther, that whether there is the animus revertendi, is a fact to be left to the Jury. There can be no question that if the proposition of the counsel for the plaintiff in error, that the abandonment, to defeat a recovery, must be without the animus revertendi, be a sound one, that the fact whether there was or not the animus revertendi, must be left for the ascertainment of the Jury. So the question is narrowed down to this, “ can a plaintiff in ejectment recover upon prior possession against a tenant entering as an intruder, who has abandoned that possession with a purpose of resuming it? ” We think that he can, and remand this cause, with instruction that it be left to the Jury to determine whether in this case Jones’ possession was abandoned with or without a mind of returning.

Direct authority upon this question, I find to be very scarce— it must be decided therefore mainly upon principle. Possession is one, although the lowest grade of title. It is prima facie evidence of a legal title, until some act is done by the rightful owner to divest this possession, and assert his title. Hence it is, that as against one who can show no better title than naked possession, a plaintiff who has had prior possession, may recover upon that possession. Being prior in time and equal in degree with that of the defendant, it prevails against it. Upon what then, does the idea go, that this possession, when abandoned, cannot prevail against the possession of another subsequently acquired? I supposed must be founded upon the rudimental propositions that before society was fully organized, property was evidenced by appropriation, and that when the possessor chose to abandon the possession, it became, as Blaclcstone says, “naturally speaking, publici juris again,” and liable to be appropriated by the next occupant. But even when this primal law of property prevailed, both the possession and the intention to possess, must have ceased before the right of the first occupant was divested ; for if one was possessed of a jewel, and lost it, or dropped it by accident, and another found it, the loser was still the owner. I assume then that to abandon property, the possessor must vacate the possession without any intention of resuming it. If this be so, of course it is true that when one vacates the possession with the intention of returning to it, he has not abandoned the property. And it is upon the idea that the first proprietor has abandoned the property, that is, made derelict both his title and possession, that a subsequent possession can prevail against him. (For caution’s sake, I remark, 'parenthetically, that I do not speak of possession in this opinion, on either side, which by lapse of time, has ripened into a statutory title.) Dereliction, by the civil law, is the voluntary abandonment of goods by the owner, without the hope or the purpose of returning to the possession — sine spe revertendi et sine animo revertendi. 1 Bro. Civ. Law, 239. Woods’ Civ. Law, 156. And the dereliction of the civil law is, upon principle, that which to my mind alone, will in the cases contemplated, defeat a recovery in ejectment upon prior possession. Ifind, in Smith vs. Lorillard the doctine above stated, taught by Ch. Kent, in so many words. He says, “ A prior possession short of twenty years, under a claim or assertion of right, will prevail over a subsequent possession of less than twenty years, when no other evidence of title appears on either side. It is, however, to be understood in the cases to which the rule of evidence applies, that the prior possession of the plaintiff had not been voluntarily relinquished without the animus revertendi.” The Chancellor’s opinion therefore was, that although the possession is voluntarily relinquished, yet if there is the animus revertendi, the plaintiff may recover. And in the same case, he seems to adopt, in regard to abandonment, the meaning of the civil law, which, as I have shown, is an abandonment without the hope or intention of returning. Speaking of a tenant’s possession having so matured as to toll an entry, he says, “ but until the possession of the tenant has become so matured, it would seem to follow, that if the plaintiff shows a prior possession, upon which the defendant entered, without its having been formally abandoned, as derelict, the presumption arising from the tenant’s possession is transferred to the prior possession of the plaintiff, &c.” . 10 Johns. R. 356. So, in Clemens vs. Gotshall, it was held that a man does not lose his settlement by leaving it for a temporary purpose, if he retained the animus revertendi. 4 Yeates R. 330. Ibid, 534. The case read from 5 MunjortSs Reports, by the counsel for defendant in error, is fully to the point, that a plaintiffin ejectment cannot recover upon possession, after he has abandoned it. No question was made in that case, however, about the animus revertendi, and I am well satisfied that the criticism made upon it by Mr. Cobb, counsel for plaintiffin error, is correct, and that is, that it rules that when there is an abandonment without the animus revertendi, the plaintiff can’t recover, but does not deny that he may recover if there is the animus revertendi.

That there is some evidence in this case, that Jones had the animus revertendi, cannot be questioned. He went into possession as purchaser from Warren, and Bassey went in under him, by virtue of a contract of purchase. What that contract was, does not appear. It may not have been complied with — probably was not, and the contract was abandoned. 'Whilst Bassey was in, at all events, the witness says he held possession under Jones. When he left, the house and lot was vacant, but up to that time, Jones had not made any abandonment. The vacancy occurred between Rassey’s removal and Edmond Nunn’s entering. How Edmond Nunn got in, does not appear; but he himself admits that he had no title, and said that he would give up the possession if Jones would not charge him rent. This is some proof that Jones had not quit the possession with a purpose never to return; but on the contrary is, to some extent, demonstrative that he was still asserting a claim, and therefore purposing to regain possession.

So that question must go to the Jury.