Varner v. Gunn

61 Ga. 54

• Court: Houston Superior Court, Ga.
• Decided: August 15, 1878
• Status: Published

Opinion

Warner, Chief Justice.

This was a bill filed by the complainant against the defendants to recover the possession of certain described lands on the allegations contained therein. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the defendants. A motion was made for a new trial, on the grounds contained therein, which was overruled, and the complainant excepted. The controlling question in this case is whether the complainant’s right to recover the land sued for was barred by the statute of limitations, it being in the nature of an equitable action of ejectment.

It appears, from the evidence in the record, that in the year 1853, Benjamin II. Gray, by his last will and testament, devised the land in dispute to his son, Patrick Gray, in trust for the sole and separate use of his two daughters, Ann and Jane Gray, and for during their natural lives, and after their death to their children, but if they should die leaving no children, or representatives of children, then the property so devised to revert to his estate, and be equally divided between his other children in the same manner as before directed. Ann Gray married Yarner in 1855, in the seventeenth year of her age, and has now five living children. Jane married Walker, and died in 1867, leaving no children, her husband having died in 1861. In the year 1856, after the marriage of his two sisters, Ann and Jane, Patrick Gray, their trustee, petitioned the superior court of Houston county to be removed from his said trusteeship, and that Walker and Yarner be appointed trustees for their respective wives in his place. The court granted the petition, and passed an order removing Patrick Gray as trustee, and appointed Yarner and Walker trustees, as requested, in his place and stead. Afterwards, in May, 1857, Varner and Walker petitioned the judge of the superior court of the Macon circuit, exercising jurisdiction in chancery, for leave to sell the land in dispute, the said Ann and Jane joining in said petition. The chancellor, at chambers, after considering the application, granted leave to sell the land at public or private sale, and empowered the trustees to convey the same by deed, and to receive what the land might sell for, and invest the same in other property upon like limitations, conditions and trusts, as the said land is now held by them. On the 5th day of January, 1859, Yafner, as trustee, in pursuance of the aforesaid order, conveyed the premises in dispute by deed to the defendant, D. E. Gunn, under whom the other two defendants claim title, for the consideration of $1,885.00, and a similar deed was made by Walker, trustee, to Gunn, under which the defendants also claim title.

It appears from the evidence in 'the Record, that D. F. Gunn was the guardian of Ulysses Gunn and Yictoria Gunn, and that by an order of the court of ordinary he had turned the land over to them in settlement as such guardian, in 1865. The land has been in the possession of D. E. Gunn from the time of his purchase of it from Yarner and Walker up to November, 1865, when he turned it over to his wards in settlement, and it has been in their possession, or at least one of them, ever since.

The charge of the court complained *bf in relation to the bar of the statute is as follows: “ The defendants say more, if that proposition is not true, if they did not get a good title at such sale, if the sale was made, yet they say that the trustees obtained an order from the proper court to sell this property, and that they bona fide and for a valuable consideration, bought it from said trustees in pursuance of that order, that they took a deed from these trustees and went into possession under that deed, and that they, and those claiming under them, have remained in the possession of this property more than seven years under color of title before the institution of this suit, and if this be so, then they have what the law calls a good prescriptive title.” This charge of the court was not erroneous, especially when taken in connection with the other portions of the charge contained in the record. This case comes within the rulings of this court in Wingfield et al. vs. Virgin et al., 51 Ga., 139 ; Brady et al. vs. Walters, 55 Ga., 25.

Let the judgment of the court below be affirmed.