Roe v. Doe ex dem. Long

27 Ga. 280

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The Court was right in refusing to give the first charge as requested. For conceding that possession, under a parol purchase, may ripen into a statutory title, still the evidence in this case would restrict it to the actual possession. And having no paper title, the defendant could not be protected beyond his possessio pedis.

The Court, we hold, laid down the rule of law correctly, in the first charge as given, and as applicable to the facts of this case, namely: that the defendant, to protect his title under the statute, must either have a paper title, or have the land enclosed, or the boundaries distinctly marked out. And mot a parol contract of the purchase of the whole lot.

[2.] It is true, the evidence showed that the disclaimer in this case of having title, was made after the seven years had run. But what of that? We think it just as good to deprive the defendant of his statutory defence, as if made within the seven years. And the defendant was not hurt by the assumption on the part of the Court, that the disclaimer may have been made within the seven years. On the contrary, the jury examining the testimony and finding it was made after-wards, may have thought that it was not sufficient to oust the defendant of the benefit of his possession. And so may his Honor have supposed. But we think differently. Suppose the maker of a note promise to pay after the six years have run, will not this take it out of the statute ? Surely. Why not a disclaimer of title to land, even after seven years possession ?

Judgment affirmed.

McDonald J. absent.