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Twiggs
County, Georgia
Court Records
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McCRARY et al. v. GLOVER
et al.
(Supreme Court of Georgia. Dec. 7, 1896.)
EJECTMENT —TITLE TO MAINTAIN—TENANTS IS COMMON.
1. Where, In apportioning a tract of land among several common owners,
the same identical portion is set apart severally to two distinct
persons, and they accept and acquiesce in the partition proceedings as
having the effect of making them tenants in common of that portion, a
mere parol agreement between them to divide in kind the land thus set
apart, but which was never in fact carried out, would not authorize a
successor in title of one of them to maintain ejectment against a
successor in title of the other for a small parcel of the land, the
same not appearing to be more than a fair proportion of the property
which the defendant, as a tenant in common with the plaintiff, would be
entitled to occupy.
2. Under the facts disclosed by the record, there was no error in
directing a verdict for the defendants.
(Syllabus by the Court.)
Error from superior court, Twiggs County; C. O. Smith, Judge.
Action by I. N. McCrary and others against G. Z. Glover and others.
Judgment for defendants. Plaintiffs bring error. Affirmed.
The following is the official report: The action was brought on three
demises: One from L N. McCrary, "as owner and as head of a family
consisting of wife and minor children;" another from Aaron Boynton; and
the third from D. A. Trasner. The real defendant was George Z. Glover
Individually and as guardian of Miss Rosa Peacock, and Miss Rosa
Peacock. The land sued for was described as "lying in the Twenty-Sixth
district of Twiggs county, about four miles north of the town of
Jeffersonville, and known in the plan of said county and district as
eight acres of land, more or less, known as the `Tom Solomon New
Ground', and being that portion of the 350-acre tract formerly known as
the 'Lawson Place,' and later as the 'McCrary Place,' which Is Included
In the following metes and bounds: Bounded on three sides, namely on
the northwest, northeast, and southeast, by a fence separating said new
ground from Woodland, known as 'Woodland of I. N. McCrary,' and bounded
on the southwest by the true land line separating said 350-acre tract
from the Rosa Peacock land, said true land line being described as
follows: Commencing at a large locust tree on the west side of the
Jeffersonville and Gordon public road, and extending thence In a
direction north, 47 degrees west, between said 350-acre tract and lands
belonging to Miss Rosa Peacock." At the conclusion of the evidence and
argument the court directed a verdict for the defendants. Plaintiffs
moved for a new trial, and, the motion being overruled, excepted. The
motion was upon the general grounds alone, and because the court erred
In directing a verdict for defendants.
Plaintiffs introduced transcript from the record of the court of
ordinary of Twiggs county of partition proceedings in said court of the
estate of Sabra Durham, had upon the application of J. R. and P. D.
Wimberly, administrators of said Sabra Durham, for a division In kind
of the lands of said estate among the heirs of said Sabra. These
proceedings showed that the division was ordered, commissioners
appointed, etc., and that said commissioners made a return to the
August term, 1874, of the said court, allotting to each of the other
heirs tracts of land not material to be herein set out, and described
the lands apportioned to Mrs. M. E. Lawson and Mrs. Alice L. Taylor,
respectively, as follows: "In the Sandy place we find 600 acres. We
give all that part of the land lying on the left of the road leading
from Jeffersonville to Durham's old mill place, starting from corner of
J. B. Peacock's quarter, immediately at corner of his fence on said
public road, to the point where an old house is located near the old
mill in corner of said land to M. E. Lawson; and all the land lying on
said line and west and north of the same we give to Alice L. Taylor. We
therefore assign said several parts of land to said heirs as an equal
distribution. All of the aforesaid heirs drawing lands on the Durham
home place and Sandy place to pay the heirs on the Houston place 550
for each heir on said place." Plaintiffs put in evidence also warranty
deed from Mary E. Lawson to Aaron Boynton, dated September 3, 1SS5, and
duly recorded, conveying "that tract of land including 350 acres of
land, more or less, known as the 'Lawson Place,' on Big Sandy, bounded
on the south by the Peacock place, on the west by the estate of S. P.
Graggs, and on the north by lands of Stokes and Floyd, on the east by
R. M. Benford's and W. T. Cannon's land, being in the 20th district,
Twiggs county, Georgia." Also warranty deed from Aaron Boynton to P. M.
Jones, trustee for I. N. McCrary and family, dated December 28, 1806,
and duly recorded, conveying the same land as was conveyed by the deed
last above. This deed recited that on December 18, 1880, the judge of
the superior court of Bibb county granted an order for the sale of I.
N. MeCrary's homestead property in Bibb county, and reinvestment of the
proceeds In 350 acres of land, more or less, in Twiggs county, upon the
same use, and appointing P. M. Jones as trustee to sell the homestead,
and make the reinvestment; wherefore the deed was made, etc.
Defendants Introduced in evidence a deed from J. R. Taylor to F. E.
Peacock and J. B. Peacock, natural guardian for H. C. Peacock and M. C.
Peacock, dated January 29, 1876, recorded April 9, 1891, to "all that
one-half undivided interest in the lands, being 300 acres, more or
less, drawn by A. L. Taylor as distribution of the estate of Sabra
Durham, deceased, the same lying on the left of the road leading from
Jeffersonville to Durham's old mill, which one-half interest is the
distributed share of estate of said A. L. Taylor, who Is now deceased,
belonging to said J. R. Taylor as heir of her estate; all lying in
Twiggs county, Georgia and bounded by lands of S. E. Peacock, T. J.
Joyner, Mary E. Lawson, and W. H. Stokes." Defendants introduced also
certified transcript from the records of Twiggs court of ordinary,
purporting to be a return of commissioners appointed by said court at
its May term, 1882, "to divide the real estate belonging to the estate
of S. E. Peacock and H. C. Glover unto Rosa Maud Peacock, and all lying
and being in said county and state, for the said H. C. Glover and Dr.
T. S. Jones, guardian ad litem of said Rosa Maud Peacock." The report
was as follows: "We award and assign to the said H. C. Glover all of
the Radford & Wimberly places, the same being whole lot No. 9 In
26th district, and 150 acres, more or less, of the Wimberly land In
25th district, and In said county, being 400 acres, more or less, as
her share in said land; and to Dr. Thomas S. Jones, guardian ad litem
for Rosa Maud Peacock, 200 acres of land, more or less, In 26th
district, said county, known as the 'Alligator Place' and 500 acres,
more or less, In 26th, 27th (lists, of said county, and known as the
Taylor' and 'Murphy1 places, aggregating 700 acres, more or less, as
the full and complete shares of said Rosa Maud Peacock, both as an heir
at law of the said S. E. Peacock, deceased, and as a tenant In common
with the said H. C. Glover." Defendants Introduced also diagram, of
which the following is a copy:
Plaintiffs Introduced oral testimony to the following effects: R. M.
Benford testified: "I have known the land sued for, and the entire
tract known aa the 'Lawson Place,' for many years. Knew the place when
It was a part of the old Durham place. The land described In the
declaration Is a new ground or clearing of about six acres. It was
cleared by a negro tenant of Glover's, the guardian of Miss Rosa
Peacock, about seven or eight years ago. [The trial was in April, 1895,
and suit was brought in 1890.] The negro's name Is Tom Solomon, and he
still tends the land in dispute. It is in shape nearly an oblong
square, bounded on one side by the old established land line,—the old
fence row which separated the old Sabra Durham place and the Peacock
place. On the other three sides it is bounded by woodland belonging to
the McCrary place, formerly the Lawson place, and still earlier the
Durham place. This new ground lies entirely on the McCrary side of the
old fence row,—the northeast side,—the same side with all the balance
of the Lawson land. It is all of it a part of the land known formerly
as the 'Lawson Place," and before that the land was a part of what was
known as the 'Durham Place.' This new ground Is under fence. It Is
shown with substantial correctness in the accompanying diagram, Is a
little longer than it Is wide, and the greater length is up and down
the old fence row. Until this land was cleared and fenced by Tom
Solomon, it always formed part of the old Durham, afterwards the
Lawson, place, and still later the Aaron Boynton place and the McCrary
place. The old fence row was the recognized dividing line between the
two plantations—the old Peacock place and the old Durham place—as long
as I have known these plantations. This fence row was the original land
line between the two adjoining lots of land, as I understand It It Is
the line shown on the accompanying diagram, and may be described as
follows: It begins at a locust tree on the road leading from
Jeffersonvllle to Gordon,—the same road that led by Durham's old mill.
The locust tree is right on the road at a point which was known as
'Peacock's Corner' or 'Peacock's Quarter', which quarter was on the
Peacock place, just above the locust tree, and right in the corner of
the fence, at the road. The line ran from the locust tree In a
northwest direction down an old hedgerow, and crossed Alligator creek
to where there was a house; and at that point the line of the Durham
place left the Peacock line, and took its course to the Big Sandy
creek, and the Big Sandy formed a line back to the Jeffersonville road.
All the land included within the bounds Just mentioned lay on the
left-hand side of the road leading from Jeffersonville to Durham's old
mill, and was part of the Durham place, which lay on the Big Sandy.
This tract may contain four or five hundred acres. This Lawson place
was not the whole of the old Durham place. The Durham lay on both sides
of the Big Sandy and on both sides of the road. I lived on the place
about 13 years, and when I first knew It It belonged to Hardy Durham,
and after his death to his widow, Sabra, till her death." Another
witness testified substantially as did the last witness, except as
follows: "The Tom Solomon new ground lies entirely on that side of the
fence row which belongs to the old Durham place, not the McCrary place.
Up to the time that Tom Solomon cleared this new ground, the old fence
row had always been recognized as the true line between those two
plantations by the owners on both sides. The whole or the Tom Solomon
new ground is part of the Lawson place,—the old Durham place. The
Lawson place contains, I suppose, about 350 or 400 acres, possibly
more, and extends from the line next to the Peacock place to the Big
Sandy creek. The Lawson place has not been cultivated for some ten
years or such matter. The diagram [referring to that above copied] is
approximately correct. It should show the new ground further over on
the Lawson land." Another witness testified: "I know the old Durham
place, afterwards the Lawson place. It is the same place that has been
more recently known as the McCrary place. I have known that place about
65 years, and lived on it all of my life until recent years. The old
fence row between the Peacock place and the Durham place has been
recognized as the land line between those plantations as far back as I
can remember. That fence line began on the public road from
Jeffersonville to Durham's old mill, at a point where a locust tree
stood, and ran from there in a direction about half way between north
and sunset. The field on the old Peacock place cornered on the public
road, and Peacock's quarter was located at that point, where the locust
tree stood. All the laud that lies on the right-hand side of that line
leading from that locust tree down towards Alligator creek belonged to
the Durham place, afterwards the Mary E. Lawson place. I know the land
described in the declaration, and carried the chain when it was
surveyed five or six years ago,—soon after Tom Solomon first cleared it
and fenced it, when the dispute first grew up about that land. It all
lies on the Durham side—the Lawson side—of that line. When Tom Solomon
cleared it, he was a tenant of George Glover on the adjoining land, and
cleared and took in this land over the line. According to the survey
above mentioned, this land in dispute was on McCrary's place. After the
death of Mrs. Sabra Durham, P. B. Wimberly looked after her estate, and
his tenants worked the land for several years. The land was afterwards
known as the 'Lawson Place.' She afterwards sold It to Boynton, and
Boynton to McCrary. Nobody has lived on the place or farmed it for
several years, except the Tom Solomon new ground. I don't know how many
acres there are in the tract which I call the 'Lawson Place'; may be
400, possibly more. It is narrower through to the public road that is
shown In the diagram." For the defendants H. S. Wlmberly testified: "My
daughter Alice L. married J. R. Taylor, and died In a few years
afterwards, leaving her husband and two children. One of these died
shortly afterwards, and the other died when about two years old. Mary
B. Lawson was also my daughter, and is dead. My wife, the mother of
Mary K. Lawson and Alice L. Taylor, was the daughter of Mrs. Sabra
Durham and Hardy Durham. I was acquainted with the land shown in the
diagram. My understanding was that it embraced the shares of both Mary
E. Lawson and Alice L. Taylor, and they divided it between themselves;
Mrs. Taylor taking the part next to the Peacock place, and Mrs. Lawson
the part next to the Big Sandy. I knew of no other division of the
land. The whole tract embraced, I think, some 600 acres." P. D.
Wimberly testified: "I was one of the commissioners who divided the
Sabra Durham lands among the heirs at law. None of the commissioners
went on the lands to divide them, but the division was agreed on
between the heirs, and we made it as instructed by them, and reported
the same to the court My recollection is we never divided the land
between Mrs. Lawson and Mrs. Taylor. The 600 acres were set apart for
both of them. This was the agreement between them, and we so acted. We
set apart to these two heirs the land lying on the left of the road
leading from Jeffersonville to Durham's old mill, and known as the
'Durham's Sandy Place.' Knew nothing of the lines around the place. We
do not assign any land to Mrs. Taylor on the right of the road leading
from Jeffersonville to Durham's old mill, but all the land assigned to
them lay on the left" J. T. Horn testified: "There are six or seven
acres of the new ground in dispute on what is known as the 'Durham Old
Place.' Have known the place many years. Know the line between the
Peacock Alligator place and the Durham old place. The diagram is a
correct one of the lands and lines and of the public road and mill. The
line commencing at the locust tree has always been known as the line
between the Peacock lands and the Durham lands. The Peacock lands were
never part of the Durham place. The lands shown by the diagram as lying
on the left of the road from Jeffersonville to Durham's old mill are
known as the Durham's lands, and contain, I think, five or six hundred
acres. There Is a hedgerow along the straight line shown by the diagram
part of the way across. The locust tree represents the corner of
Peacock's land and the Durham land at the road. I was one of the
processioners who ran off the line between the Peacock place and the
McCrary place about April, 1888. The county surveyor of Wilkinson
county made the survey. There was a county surveyor of Twiggs county at
the time. We laid out the line according to the original recognized
line between the Peacock place and the old Durham place. The land In
dispute lies on the McCrary side of the line, and is part of the old
Durham lands. We ran the line at the Instance of McCrary, because of
the dispute growing out of the clearing of the new ground by Tom
Solomon, and shortly thereafter." Another witness testified that when
the land of the estate of Sabra Durham was divided among her heirs the
land shown on the diagram was all of the Durham Big Sandy place that
belonged to the Durham estate; and that he estimated that the place
contained 700 acres. George C. Glover testified: "J. B. Peacock and S.
B. Peacock died, leaving only two children,—my wife, formerly H. C.
Peacock, and Rosa Peacock. They were the only heirs at law. I know that
McCrary claimed the land In dispute when my tenant cleared It. My
tenant cleared It, and pitched bis crop on it, before I knew be was
doing it To the best of my belief, there are from seven to eight
hundred acres in the body of land known as the 'Durham Land' lying on
the left of the Jeffersonvllle road, as shown in the diagram."
[The Southeastern Reporter, Volume 26 by West Publishing Company, 1897
– Transcribed by Therman Kellar]
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