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Ejectment. Before Judge Anderson. Richmond Superior Court. February 2, 1954.
HEAD, Justice.
"A plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of the defendant's title." Code 33-101. In the present case the plaintiff failed to establish any title to the lands described in his petition, and failed to so identify the lands that a writ of possession might properly issue.
Alexander Fryer filed an action in ejectment in fictitious form against Ralph Edwards, to recover: "All that lot and parcel of land situate, lying and being in the 1660th DGM of Richmond County, Georgia, containing one (1) acre, more or less, and being known and designated as the Old Sukey Williams Place."
At the conclusion of the plaintiff's testimony, he introduced in evidence three deeds, the oldest being a deed from John O. Wicker, attorney, to John J. Lever, dated March 12, 1898, and recorded December 19, 1905, conveying the following described lands: "All that lot or parcel of land containing six acres more or less in said State and county and 123rd District, G. M., bounded: on the south by Tobacco Road; east by land of John Murray; west by lands of Sidney Austin, and north by lands of Robert Golfin, being part of 150 acres of the estate of James Brandon. In this conveyance is included one acre sold to Sucky Williams, who afterwards became the wife of David Wilson but now dead, leaving said Wilson her sole heir at law, having departed this life without issue." The second deed was from John J. Lever to J. M. Seago, dated November 9, 1905, and recorded December 19, 1905, conveying the same tract by identical description as above set out.
The third deed was from Josiah M. Seago to Annie May Fryer (deceased wife of the plaintiff), dated September 12, 1923, and recorded November 7, 1923, and conveying the following land: "All that tract of land, with improvements thereon, in the 1660th District, G. M., of Richmond County, Georgia, containing six (6) acres, more or less, on the Old Tobacco Road, just east of Gracewood, and being bounded: North by land of Will White; east by land of McDade; south by Old Tobacco Road; and west by land of Will White, and being the same land conveyed to said party of the first part by deed of J. J. Lever, dated November 9, 1905, recorded in Deed Book 6-L, p. 227, in the office of the clerk of the superior court of said county. This deed is made pursuant to and in satisfaction of a bond for title from said party of the first part, dated April 1, 1919, which bond is herewith satisfied, canceled and surrendered."
The character of the testimony in behalf of the plaintiff will be referred to in the opinion.
The plaintiff contends that his wife bought two tracts of land from J. M. Seago, and that they are described in the same deed. This contention is wholly without any evidence or inference to support it. The deed describes a tract of land containing six acres, and states that it is the same land conveyed to the grantor by J. J. Lever. The boundaries given indicate that only one tract was conveyed.
In the deed from Wicker, as attorney, to Lever, and in the deed from Lever to Seago, we find the statement: "In this conveyance is included one acre sold to Sucky Williams, who afterwards became the wife of David Wilson, but now dead, leaving said Wilson her sole heir at law, having departed this life without issue." If by this language it was intended to convey a separate one-acre tract, the description would be wholly void, there being nothing to indicate any location of the one-acre tract of land as to State, county, district, or otherwise, and the one-acre tract is not designated as to boundaries, or as a "known" tract of land. Johnson v. McKay, 119 Ga. 196 (45 S. E. 992, 100 Am. St. R. 166); Allen v. Lindsey, 139 Ga. 648 (77 S. E. 1054); Boney v. Cheshire, 147 Ga. 30 (92 S. E. 636); Bennett v. Green, 156 Ga. 572, 575 (119 S. E. 620); White v. Spahr, 207 Ga. 10, 21 (3) (59 S. E. 2d 916). The inference of the deed from Wicker to Lever, and Lever to Seago, is that the one-acre tract is included in the six acres which are described and bounded.
It is not essential that we should point out the contradictions in the plaintiff's testimony, or the contradictions of his testimony by his two other witnesses. There is no sufficient identification of any tract of land known either as the Sucky Williams Place of the Sucky Wilson Place. The plaintiff could not recover, since his evidence failed to sufficiently describe or locate any land either by boundaries or as a "known" tract of land.
The plaintiff failed to show title by prescription to any land. He claims that he cultivated a tract of one acre for two years, and that he thereafter cut timber off of it up until the time that the defendant "claimed he bought it." This testimony is contradicted by his witness Lindsay Coleman, who stated: "There was not any timber on the place that my uncle was always telling me was Sucky Wilson's place. You couldn't cut timber, no sir. It was oak; couldn't say timber because there wasn't any timber on the place, never been anything but scrub oaks." According to the plaintiff's testimony, his cultivation of the land was prior to the execution of the deed from Seago to Annie May Fryer, and according to the witness Lindsay Coleman, the cultivation of the land by the plaintiff was years prior to this deed.
Title by prescription is not shown, even as to a clearly identified tract of land, where the prescription relied upon is based on alleged cultivation for two years and the occasional cutting of timber (if such cutting of timber, under all the evidence, could be said to have occurred). Robertson v. Abernathy, 192 Ga. 694, 698 (16 S. E. 2d 584); Bridges v. Brackett, 208 Ga. 774 (69 S. E. 2d 745).
The verdict for the plaintiff was wholly without evidence to support it, and the court erred in denying the motion for new trial.
Judgment reversed. All the Justices concur.
Robertson & Gilbert, contra.
Boller & Yow, for plaintiff in error.
ARGUED APRIL 12, 1954 -- DECIDED MAY 10, 1954.
Saturday May 23 03:32 EDT

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