Opinion
17478.
SUBMITTED MAY 14, 1951.
DECIDED JUNE 11, 1951.
Complaint for land. Before Judge Thomas. Pierce Superior Court. April 7, 1951.
Memory Memory, for plaintiff.
S. Thomas Memory and J. H. Highsmith, for defendants.
1. The trial court erred in overruling the ground of the motion to suppress, based upon the contention that at the time of filing the application to perpetuate testimony the applicant had the right to commence a suit which would have determined all his rights as claimed in the present suit.
2. The charge complained of in the second special ground of the motion for new trial, when considered in connection with the entire charge, was not erroneous for any reason assigned.
No. 17478. SUBMITTED MAY 14, 1951 — DECIDED JUNE 11, 1951.
Earlish L. Boatright filed in Pierce Superior Court, against Mary Smith and others, a petition seeking to recover a described tract of land consisting of three acres, more or less, lying in land lot 62 in the Fourth District of Pierce County. The defendant filed an answer in the nature of a cross-petition, seeking an injunction and other relief. The plaintiff and the defendants are coterminous landowners. Each claims title to the land in dispute, which is situated between the plaintiff's land on the south, and the defendants' land on the north. The correct location of the boundary line between the litigants is the controlling question.
The plaintiff and the defendants claim under separate chains of title, each of which originated from a common source, to wit, Alfred Smith, one chain ending in the plaintiff and the other in the defendants.
On August 24, 1920, and December 6, 1928, Alfred Smith executed warranty deeds conveying 60 acres and 30 acres respectively to his son Seab Smith. On October 21, 1939, Seab Smith conveyed the 90 acres to G. N. Smith. On August 1, 1944, G. N. Smith conveyed this land to R. T. Boatright. On May 7, 1949, R. T. Boatright executed a deed of gift, which was not recorded until December 6, 1950, conveying the above land to his son Earlish L. Boatright, the plaintiff.
On December 6, 1928, Alfred Smith executed a warranty deed conveying 130 acres to his son John A. Smith, who died intestate on May 17, 1941. Mary Smith, the wife of John A. Smith, and their three daughters, are the defendants.
After a jury was stricken and the trial of the case was begun, the defendants offered in evidence certain interrogatories of Alfred Smith to the effect that the line claimed by the defendants was the correct dividing line. Counsel for the plaintiff moved to suppress the interrogatories and the answers thereto.
The application to perpetuate the testimony under Code § 38-1401 was addressed to the Judge of the Superior Court of Pierce County, and alleged substantially the following: R. T. Boatright is a resident of said State and County. Mary Smith is the owner, as a successor in title to her deceased husband, John A. Smith, of certain land described in a duly recorded deed from Alfred Smith to John A. Smith dated December 6, 1928. R. T. Boatright is the successor in title to Seab Smith of a certain tract of land lying on the south side of Mary Smith's land, said Seab Smith having obtained his title from Alfred Smith about the same time that John A. Smith obtained his title from his father, said Seab Smith being a brother of John A. Smith and both being sons of Alfred Smith. R. T. Boatright is claiming land over the line between his land and land of Mary Smith. Mary Smith has employed counsel to litigate this matter, but due to other pressing business, counsel will need at least thirty days to prepare the pleadings in said case. Alfred Smith the original owner of both tracts of land and the person who established the dividing line between the two tracts of land is around eighty-four years old, is suffering from a cancer, and is in very feeble health; therefore Mary Smith wishes to perpetuate Alfred Smith's testimony, as there is a probability that he will not be alive and able to testify when the case is regularly called for trial at the next term of the superior court. The interrogatories to be propounded to the witness were attached to the application, and the application, which was sworn to by Mary Smith, concluded with a prayer that an order be passed requiring some disinterested attorney of the court to act as commissioner and take the testimony, and was signed by counsel for Mary Smith.
On July 2, 1949, the court ordered: That a named "disinterested attorney of this court, act as commissioner to take the testimony as prayed in said application. It is further ordered that the opposite party named in said application, be served in person with a copy of said application and this order and a copy of the exhibit. Let a copy of said application with the exhibits thereto attached and this order be filed in the office of this Court for five days during which time the said R. T. Boatright may file cross interrogatories after which time the said commissioner shall proceed instanter with the examination of the witness named in said application upon all of said interrogatories and then execute the same and file them as required by law." A copy of the foregoing application and order was served on R. T. Boatright by delivering a copy of same to him in person.
The plaintiff, through his counsel, after stating that Alfred Smith was dead, moved to suppress the interrogatories upon the grounds: "1. That the opposite party, Earlish L. Boatright, was not properly served with a copy of the proceeding and order for the taking of the testimony of the said Alfred Smith, as a witness for the defendants. 2. That it is not shown by the petition to take the testimony of Alfred Smith that it was not within the power of the applicant to commence litigation with regard to the subject matter of the testimony to be taken."
On the hearing of the motion to suppress, Mary Smith, the principal defendant in the present case, testified in part: In July, 1949, Alfred Smith was almost eaten up with cancer. Earl Boatright lived on the property claimed by the plaintiff, and is still living on it. He is not Earlish L. Boatright. The witness sought information as to who was the owner of the property. From her investigation she believed that R. T. Boatright was the owner at the time she caused her attorney to take the testimony. The information she gave him was that R. T. Boatright was the owner so far as she could find. She did not have any information that Earlish L. Boatright was the owner of the land in 1949. The witness saw her attorney and told him that Alfred Smith was getting worse. She did not make an investigation but her attorney did. Her attorney told her that he called the attorney did. Her attorney told her that were going to take the testimony.
The attorney for the plaintiff denied that he had been notified of the hearing and testified that it would have been easier for counsel for the defendants to have filed a suit than to have taken the interrogatories.
The plaintiff, Earlish L. Boatright, testified that he held title to the property under a deed made to him by his father, dated May 7, 1949. He had no notice that the testimony of Alfred Smith was to be taken. He has had possession for the last five years. Earl Boatright is living there now.
R. T. Boatright testified for the plaintiff: He did not know that his son had not recorded the deed, and did not tell him that the testimony was going to be taken. Earl Boatright went there as a tenant of the witness and he is still there.
The trial court overruled the motion to suppress the testimony of Alfred Smith, to which ruling the plaintiff excepted pendente lite.
At the conclusion of the evidence in the main case, the jury returned a verdict in favor of the defendants. The plaintiff's amended motion for a new trial was denied, and the case comes to this court for review upon his exceptions to that judgment. In the bill of exceptions the plaintiff also assigned error on his exceptions pendente lite.
1. Special ground 1 of the motion for new trial complains of the admission in evidence of certain testimony of Alfred Smith. The exceptions pendente lite complain of the overruling of the plaintiff's motion to suppress the same testimony. The assignments of error are substantially the same.
Code § 38-1401 declares in part: "If any person shall desire to perpetuate the testimony of a witness, in anticipation of litigation not yet pending, and which it shall not be in his power to commence, he may make written application to the judge of the superior court."
The allegation in the application to take the testimony of Alfred Smith was that the applicant "has employed counsel to litigate the matter, but due to other pressing business, counsel will need at least 30 days to prepare the pleadings in said case." This allegation is insufficient to meet the requirements of the Code. The taking of testimony prior to the institution of a suit is authorized only when "it shall not be in his power to commence," and the absence of power to institute a suit is not shown by the mere pressure of business or the lack of information for essential allegations. Accordingly, the trial court erred in overruling the plaintiff's motion to suppress the testimony. In the light of this ruling, it becomes unnecessary to pass upon the question of whether the opposite party was properly served with a copy of the proceeding and order for the taking of the testimony.
The present case is distinguished by its facts from Hardeman v. Ellis, 162 Ga. 664 (11) 692 ( 135 S.E. 195), where, at the time of the taking of the testimony, it was not in the power of the applicant to commence the litigation.
2. Special ground 2 complains of the charge: "If the plaintiff has by evidence shown (which is for you to determine) that he has color of title, and that under such paper title he or his predecessors in title have been in bona fide possession of said property up to the line claimed by him for a period of seven years, and that possession has been open, peaceable, notorious, and continuous, then the plaintiff would be entitled to recover in the case."
After giving the above charge, the court instructed the jury: "Constructive possession of land is where a person having the paper title to a tract of land is in actual possession of only a part thereof. In such a case, the law construes the possession to extend to the boundary of the tract. Hence, adjacent owners may be in constructive possession of the same land, being included in the boundaries of each tract. In such case no prescription can arise in favor of either. . . The question for you to decide is what is the dividing line between the land of the plaintiff and the land of the defendants, there being no dispute as to title."
The language of the excerpt from the charge, when considered in connection with the entire charge, was not erroneous for any reason assigned.
Since, for the reason stated in the first division of this opinion, the trial court erred in overruling the plaintiff's motion to suppress the testimony of Alfred Smith, no ruling is necessary on whether the evidence was sufficient to support the verdict in favor of the defendants.
Judgment reversed. All the Justices concur.