Copeland v. Jordan

87 S.E. 1034, 144 Ga. 636, 1916 Ga. LEXIS 58

Opinion

Lumpkin, J.

1. While the evidence in this case was somewhat vague, that introduced by the plaintiff was sufficient to withstand a motion for a nonsuit, and it was error to sustain such motion.

2. In an ejectment case, whether a witness can testify generally, subject to cross-examination, that at a certain time a named person was in possession of a tract of land, or whether such testimony involves the statement of a conclusion and is therefore objectionable, is a question, as to which the authorities outside of this State are in conflict. See Wright v. State, 136 Ala. 139, 140 (34 So. 233); Driver v. King, 145 Ala. 585, 595, 596 (40 So. 315). Contra: Arents v. Long Island R. Co., 156 N. Y. 1 (50 N. E. 422); Tetrault v. O’Connor, 8 N. D. 15 (76 N. W. 225, 226).

(а) In Sweeney v. Sweeney, 121 Ga. 293 (48 S. E. 984), it is ruled that “where it is material to an issue on trial, a witness may testify who was in actual possession of designated realty at a given time.”"' '

(б) Semble, that this did not deal with constructive possession, hut only with actual possession evidenced by visible facts; and that the admission of such evidence would be subject to cross-examination and motion to exclude the evidence, if it thus appeared to he improper.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.

Complaint for land. Before Judge Mathews. Bibb superior court. November 13, 1914.

N. F. Culpepper and Jordan & Lane, for plaintiff. Feagin & Hancock and Napier, Maynard & Plunkett, for defendant.