[197]
By the Court.
-Lumpkin, J.
delivering the opinion.
|[1.] As to the identity of the land in this case, that is, whether it be lot No. 210 or 233, it will not be claimed that the testimony is strongly and decidedly in favor of lot No. 210.
We think the weight of evidence the other way. We are satisfied, that the mistake occurred in the original survey of the district. The concurrent proof of a number of settlers on other lots, shows that to harmonize the numbering, the land occupied by old John Keel must have been 231, and not 210.
[2.] After a careful comparison, we can see no difference between this case and that of Riley vs. Griffin, (16 Ga. Rep. 141.) This case comes clearly within the principle decided in that; and unless we are prepared to over-rule that ease, which we are not, it must control this.
[3.] It may be that the heirs of Keel are entitled, in Equity, to compensation for improvements, provided they exceed in value the rent.
[4.] It may have been better for the Court, in its charge, to have gone one step further, and told the Jury, that the paper executed to Jordan Keel by his father, was testamentary ; and therefore, could not bo considered by them. In substance, this was done. And after all, this omission or error, if it be one, applies to the weakness of the defendant's .title, when the proof shows that the plaintiff had none.
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