Smith v. Pyles

210 Ga. 86 (1953)

78 S.E.2d 5

SMITH, by next friend, v. PYLES et al.

18352.

Supreme Court of Georgia.

Submitted September 15, 1953.

Decided October 13, 1953.

W. B. Mitchell, Alvin B. Mitchell, for plaintiff in error.

W. D. Aultman, contra.

ALMAND, Justice.

Walter I. Smith, an incompetent, by and through his next friend, Carrie Lou Smith, brought an action in ejectment against John P. Pyles and Ralph Pyles, to recover a certain tract of land particularly described in the petition. The plaintiff relied for recovery solely upon his actual adverse possession of the described tract for more than twenty years. At the conclusion of evidence introduced by the plaintiff and the defendants, the court directed a verdict in favor of the defendants. The plaintiff filed a motion for new trial upon the general grounds only, no error being assigned on the direction of the verdict. The motion being denied, the case is here on a bill of exceptions assigning error on said order. Held:

The evidence, construed most strongly in favor of the plaintiff, failed to show that he had ever been in possession of the whole tract of land sued for. It showed that he went into possession, at different times, of a small part of the described tract, but that he failed to identify the part of which he was in possession and distinguish it from that of which he was not, and the verdict in favor of the defendants, regardless of the evidence in support of their title, was demanded by the evidence. Whitehead v. Pitts, 127 Ga. 774 (1) (56 S. E. 1004). It was not error to deny the motion for new trial.

Judgment affirmed. All the Justices concur.