Walton v. Whitton

124 S.E. 338, 158 Ga. 741, 1924 Ga. LEXIS 334

• Court: Supreme Court of Georgia
• Decided: July 30, 1924
• Docket: No. 4311
• Status: Published

Opinion

Beck, P. J.

“A plaintiff in ejectment may recover tie premises in dispute, upon liis prior possession alone, against one wio subsequently acquires possession of the land by mere entry, and without any lawful right whatever.” Civil Code, § 5586. The evidence in this ease of prior possession was sufficient to authorize the jury to find in favor of the plaintiff under the provisions of the code section quoted. Horton v. Muerden, 117 Ga. 72 (43 S. E. 786); Powell on Actions for Land, 405, § 305 et seq.; Louisville etc. R. Co. v. Philyaw, 88 Ala. 264 (6 So. 837); 19 C. J. 1052.

No. 4311. July 30, 1924. Rehearing denied October 2, 1924. Edwards & Edwards, for plaintiffs in error. Mundy & Watkins and M. J. Head, contra.

2. On the issue as to whether there had been such an abandonment by the defendant in error as fo prevent recovery on prior possession, the jury under the evidence were authorized to find that the abandonment insisted on had not been with an intention not to return; and where there is animus revertendi exercised within a reasonable time, the plaintiff may recover. The jury, under all the facts and circumstances shown in this record, Wei'S authorized to find that the plaintiff, after her prior possession, had not abandoned the land in dispute with an intention not to return.

No ruling of the court pending the trial is excepted to, but the motion is based upon the usual general grounds; and the evidence being sufficient to support the verdict, the judgment of the court below refusing a new trial is Affirmed.

All the Justices concur.