Barton v. Johnson
Barton v. Johnson
Opinion of the Court
This is an action of ejectment on the several demises of W. M. Barton, C. W. Barton, H. S. Barton, and Fannie Barton, against A. E. Johnson, J. C. Johnson, and W. R. Johnson, to recover the east half of lot number 130, the east half of lot number 129, and the west half of lot number 131, in the 5th district of formerly Houston, now Bibb county, Georgia. The defendants in their plea set up title by judicial sale, title by adverse possession, and res adjudicata as to three of the plaintiffs, and equitable estoppel as against all. Upon the conclusion of the evidence a verdict was directed for the defendants, and the plaintiffs excepted. The case as made by the evidence was as follows: It was admitted that John Barton was the common propositus. John Barton on July 16, 1864, executed his will; the material parts as affecting this ease are the 2d and 3d items thereof: “2. My will and desire is, and I so desire and bequeath, that all my property, real, personal, and mixed, shall remain together under the control and management of my wife, Frances F. Barton, for the joint support and maintenance of herself and my child or children during her widowhood; with these qualifications, viz.: upon the arrival of my present son, John F. Barton, at 21 years, he is to have one undivided half of my property, unless I leave a posthumous child; or if there be one and it be a daughter, then John Frances is to have the half as stated. If there be a posthumous son, he is to take his one third on reaching 21 years, and the other third to belong to my wife during her life or widowhood — in each of which events her part of the property is to belong equally to my children or child in life. It will be seen that I make this will in view of the uncertainty of my return from the army, where I expect to go in a few days. I also desire here to explain that the provision made in the event of a second marriage is done in no unkind spirit towards my wife, but simply because I prefer my children to have all my property rather than any of it should go to the support of or be managed by a stepfather. 3rd. In case my wife shall outlive my children or child, they leaving no issue, then at her death I will and bequeath all my property equally to be divided between my brothers and sisters.” John Barton died in May, 1879,'leaving a widow and four children, the plaintiffs. John F. Barton, men
Under the will of John Barton it is clear that he contemplated his early demise, and intended tó devise his property to his wife and son, John F., and an expected posthumous child. John F. predeceased his father, and there was no posthumous child. It was argued that the will could not be relied on as a muniment of title, because it was revoked by the birth of children, which contingency was not provided for in the will. The statute provides that the birth of a child to the testator subsequently to the making of the will, in which no provision is made in contemplation of such event, shall be a revocation of the will. Civil Code (1910), § 3923. It may be that the birth of other children than those referred to in
As to the east half of lot 139 there can be no doubt that the defendants acquired title by virtue of the sale of the same under the year’s-support fi. fa. in favor of Frances F. Barton and her four minor children. The year’s-support proceedings and the sale all appear regular upon their face, and no attack is made thereon by the. plaintiffs in error. Besides, as against three of the plaintiffs, that title has been confirmed by judicial decree. As to the east half of lot 130, there is no contention that the defendants or their predecessors in title from the purchaser at the sheriff’s sale ever entered into possession-of it, and. the defendants claimed neither possession of it nor title to it. As to the west half of lot 131 we think that the plaintiffs are equitably estopped from claiming title to it. It appears that the land was pointed out to the sheriff for levy by Mrs. Barton, and was misdescribed by the wrong number. It was sold by the sheriff'and purchased by the successful bidder at the sale, under the belief that it was the east half of lot 130. The purchaser was put into possession of the west half of lot 131, as being the land conveyed to him by the sheriff, and he and his grantees have remained continuously in the possession of the land for nearly 30 years prior, to the institution of this suit. The deed from the sheriff was promptly recorded. . In 1893 Mrs. Barton and three of the children, who were then of full age, joined in the conveyance to Mrs. Grace; and three years thereafter, upon the arrival at age, the other plaintiff ratified the conveyance. Mrs. Grace went into possession of the land purchased by her; and as there is nothing in the record impugning her good faith, her adverse possession for more than seven years has ripened into a prescriptive
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.