
    Verdery et al. vs. The Savannah, Florida and Western Railway Company, and vice versa.
    
    1. Upon admitted or undisputed facts, the court may decide the question of title by prescription as matter of law, without submitting the same to the jury.
    2. Wholly withdrawing from the jury, by the general charge, certain defences set up and relied upon by the defendant in ejectment, is equivalent to withdrawing all evidence relating to these defences, and this cures any error committed in admitting such evidence.
    3. Whilst realty of which a debtor has had adverse and continuous possession under written color of title is in the hands of a receiver appointed by a court of equity at the instance of creditors, the statute of prescription continues to run in favor of such debtor’s title against strangers to the pending litigation. The possession of the receiver may be tacked to that of the debtor, and to that of the purchaser of Ijhe premises at a sale made under a decree in the cause, to make out the full period of the prescriptive term.
    4. Though no prescription works against the rights of an insane person so long as the insanity continues, yet different lucid intervals, amounting in the aggregate to as much as seven years may be put together, and the effect will be to bar the right of action.
    5. The certificate of the ordinary to an exemplification of the proceedings on a commission of lunacy, showing that the papers exemplified are of file in his office, the exemplification is not inadmissible because it does not otherwise appear that the papers were filed, or because they were not recorded, or because no judgment was entered on the verdict which found that the person proceeded against was not a lunatic. Though there might have been other ' possible objections on which the exemplification should have been excluded, the specified objections were not well-taken.
    6. Where the court gives in charge a written request, superadding observations, a general exception to the matter superadded will not avail if any part of it be legal. Where part is legal and part illegal, the exception must distinguish.
    7. Newly discovered evidence, if cumulative or immaterial, or if due diligence be lacking, will not justify the grant of a new trial.
    8. There is enough evidence in. favor of the verdict to uphold it, the presiding judge below being satisfied
    September 16, 1889.
    Practice. Title. Prescription. Charge of conrt. Ejectment. Evidence. Receivers. Possession.' Insanity. Statute of limitations. New trial. Before Judge Adams. Chatham superior court. June term, 1888.
    On June 4, 1887, Charity C. Yerdery,'in her own right and as administratrix of the estate of George H. Conn, brought suit against the Savannah, Florida and Western Railway Company for the recovery of certain land with mesne profits. The defendant pleaded,' in substance, that it was the lawful owner of the land sued for, holding same by virtue of its succession to, by purchase of, the rights, property, etc. of the Atlantic & Gulf Railroad Co.; that the lot of land sued for was sold to the Atlantic & Gulf Railroad Co. by Mrs. Charlotte Conn, as executrix of G. M. Conn, and under the provisions of the will of G. M. Conn the executrix had the right to make such sale, Charity C. Yerdery and G. H. Conn being the children of G. M. Conn and claiming under him; that said sale was made December 6th, 1866, and was a sale for value; that the land was bought in good faith; and that the defendant and those under whom it holds continued in public, exclusive, etc. possession from December 6th, 1866, up to the commencement of this action ; etc.
    It was admitted that plaintiff and defendant both claimed under G. M. Conn, and that defendant was in possession of the land sued for when the action was brought.
    
      Tbe testimony for tbe plaintiff tended to show tbe following facts: The property in dispute was owned at the time of his death by George M. Conn, who died in June, 1866, leaving a widow, Mrs. Charlotte Conn, who was his executrix, and two children, Charity Conn, who afterwards became Charity Verdery, and George H. Conn. Mrs. Verdery married, in 1868, and attained her' majority in 1872. George H. Conn attained his majority October 25th, 1869, and died in April, 1886, and his sister became his administratrix in 1887. By his will, George M. Conn devised to his two children all his estate, giving to his wife for her support so long as she remained his widow, and for the support and education of his children, the use of - all his estate; he empowered his executors “to sell any portion of my estate whensoever in their judgment it may be necessary for the support of my said wife and for the support and education of my said children or to the interest of my estate, and to execute all necessary conveyances for the same.” He appointed his wife and another executrix and executor, but it seems that his wife alone qualified. On the 6th of December, 1866, Mrs. Conn, as executrix, sold the land sued for (describing it as it is described in the declaration) to the Atlantic & Gulf Railroad Co. The consideration of this deed was $2,000 in money and $2,000 in bonds of the State of Georgia. The deed does not recite that the sale was a public sale after advertisement. The testimony for plaintiff tends to show that it was a private sale without advertisement; that the 6th of December fell on Thursday; that the land was worth at the time considerably more than $4,000 ; that George H. Conn was weak-minded from childhood; that he led the life of a wandering vagabond; and he is described in the testimony as idiotic, insane, an imbecile and a lunatic,- his condition growing worse up to the time of his death. In 1873, the condition of his mind was very bad, and it continued to be bad until he died. In 1868, after the death of Mrs. Conn, letters of administration on the estate of George M. Conn were issued toM. Spain Yerdery. No returns were made by either Mrs. Conn or Mr. Yerdery as to the estate of George M. Conn; and it seems that Yerdery and the securities on his bond had little or no property, and that he was a cousin of the husband of plaintiff, who was Ur. P. S. Yerdery. The plaintiff testified, among other things, that she did not know anything about the sale of the land by her mother; that her brother was in Savannah in 1866, but she did not know whether he knew about the sale or not; that she and her brother lived in Augusta with her mother for a year or two, her mother having moved to Augusta in 1867 ; that they were supported by her mother, but she did not think they got any of the proceeds of the sale, though she did not know where the money came from to support them ; that she knew of Spain Yerdery’s appointment as administrator, but made no application to him for money, though her husband may have done so; she did not know of a suit brought by Spain Yerdery,. as administrator of her father’s estate, for property bought by her mother in Augusta, said property having been bought by her mother before leaving Savannah ; she knew the matter was in the hands of lawyers and the administrator, but never knew what became of it; knew there was an administrator of her mother’s estate, but made no effort to find out who was the administrator and what became of the property; she thought her mother bought that property in Augusta with proceeds of the sale of the land sued for; knew her mother had bought a lot in Savannah after her father’s death and knew of the sale of the lot sued for, but did not inquire as to who bought it. Her mother had no separate estate, and all of the family were supported out of her father’s estate. At times, from 1875 on, her brother might have had his right mind, but she does not think he could have carried it out, and his mind seemed to get worse and worse until he died. Depositions of plaintiff also were introduced, and they seem to contradict, in some respects, her oral testimony as above stated.
    The testimony for the defendant tended to show the following: When the Atlantic & Gulf Railroad Company purchased the land it took possession of it, and in the fall of 1870 laid tracks upon it; it also used it in various' ways, as a dumping-ground, etc. The Atlantic & Gulf Railroad Company also built a water-closet and and an oil-house on it, put a gang of hands upon it, opened up the drains, ditched and levelled it. This use and possession of the property continued by the Atlantic & Gulf, by the receivers appointed for it, by the purchasers at the receivers’ sale and by the defendant, and the possession seems never to have been disturbed or questioned up to the time of the bringing of this suit. A bill was filed against the Atlantic & Gulf Railroad Company in the United States circuit court for the southern district of Georgia by the trustees for its mortgage bondholders, and on February 19th, 1877, receivers were appointed under this bill and took possession on that date, and the Atlantic & Gulf Railroad Company was ordered to make a deed of all its property to them. This deed was duly executed as ordered, ón March 1st, 1877. The receivers were continued in possession pending the litigation, and on June 20th, 1879, were ordered to sell all the property, etc. of the road. Sale was made at public outcry on the 4th day of November, 1879, and Henry B. Plant being the highest bidder, the property was knocked off to him. The sale was finally confirmed on November 19th, 1879? and the receivers were ordered to make a deed to such corporation as the purchaser at said sale, and such persons as might be associated with him, might form under the act of February 29th, 1876. H. B. Plant and his associates did form such corporation, to wit, the defendant, and on the 29th of November’, 1879, the receivers executed to defendant their deed as ordered by the court. Neither the Atlantic & Gulf Railroad Company nor the receivers nor the purchasers from the receivers had any notice of any defect of the title of the Atlantic & Gulf road to the land in dispute, other than such as might have been given by the record and chain of title under which they held. "While George H. Conn may have been, as a boy, dull and very stupid, he was not insane or a lunatic; in 1873, he applied to an attorney in Savannah and had filed an application calling upon Mr. M. Spain Verdery, as administrator of his father’s estate, to show cause why his letters of administration should not be revoked for failure to make returns. An order appears to have been issued by the ordinary upon this petition, but nothing further seems to have been done with it. A physician testified for the defendant that. he knew George H. Conn and treated him from 1879 to 1881; that he had lucid intervals monthly which lasted from twenty to twenty-three days at a time; that he had sufficient strength of mind, during his lucid intervals, to understand his legal rights if he were informed of them; that the cause of his mental derangement, existing at the time this physician was treating him, was self-abuse, but this only tended to increase his insanity; witness’s acquaintance with him ceased in 1882; he was employed by George H. Conn himself and partly paid by him.
    The defendant introduced petition of. P. S. Verdery to the ordinary of Douglas county praying for a commission of lunacy to examine into the condition of Q-. H. Conn, etc., dated April 6th, 1883 ; the order appointing a commission, of the same date, oath of the jury and their verdict that G. H. Conn was not a lunatic. As to these papers, the ordinary of Douglas county certified that they were a true transcript of all the proceedings as appeared on file in his office, and this certificate was under the seal of his court. The papers themselves have upon them no entries of filing.
    Much other testimony was introduced hy defendant not material here. The jury found in its favor. Plaintiff moved for a new trial on many grounds, which need not he set forth, as the nature of them sufficiently appears from the decision. One of them was, because of newly discovered testimony set forth in the affidavit of Mrs. Jane Derby, in substance as follows : The mind of George H. Conn was diseased and impaired, especially during the years 1869, 1871 and 1872, and deponent believes that he was an imbecile from early boyhood; his mind grew worse as he became older, and while at times he might have been capable of talking rationally on some things, she believes he was always of unsound mind. Mrs. Charlotte Conn was unable to write and could not sign her own name,, having to make her cross mark to a deed to a cemetery lot which deponent bought from her. There seems to have been produced on the hearing of the motion another affidavit of Mrs. Derby, tending to show that she had given Mrs. Verdery information as to her knowledge of the matters mentioned before the trial.
    The motion was overruled,' and plaintiff excepted. There was a cross-bill of exceptions by the defendant, not now material.
    J. A. Cronk and R. B. Trippe, for plaintiffs.
    
      Chisholm & Erwin, S. T. Kingsbery and W. R. Leaken, for defendant.
   Bleckley, Chief Justice.

Upon the admitted facts in the case the presiding judge decided as matter of law that the plaintiff', as to her own individual right to half of the premises in dispute, was barred by the statute of prescription. Ye see not the slightest indication in the record that this ruling was erroneous. Nor do we entertain any doubt that where the facts are admitted or undisputed, the judge may decline to submit them to the jury, and may decide directly the question of law arising upon them. Of. course had any of the material facts involved in this branch of the case been in dispute, the jury should have dealt with them, under proper instruction from the court as to the law.

According to the charge of the court (a copy of which is in the record), and to the statements contained in the order overruling the motion for a new trial, the right of the plaintiff to recover as the administratrix of her deceased brother, George H. Conn, was made to turn wholly upon the defence of prescription, as to the one undivided half of the premises which he took under his father’s will. Inasmuch as all other defences were expressly withdrawn from the jury, the evidence as to them, whether rightly or wrongly admitted, became immaterial; indeed, withdrawing the defences themselves amounted virtually to withdrawing all the evidence which had been submitted in support of them.

George H. Conn attained his majority in 1869, and died in 1886 ; this action was brought by his administratrix in 1887. The adverse possession, under written color of title in the defendant corporation and those under whom it claimed, had been continuous and uninterrupted from the year 1866, consequently for more than sixteen years during the lifetime of the plaintiff's intestate after his minority ueased. During the first part of the period the possession was held by the Atlantic & Gulf Railroad Company. Then came an interval of some two years, in which the property was in the hands of a receiver appointed by the United States Circuit Court upon a bill filed against the company by its creditors, to subject the‘same to the payment of its debts. The residue of the term of possession was by the defendant in this action, under a sale and conveyance made in pursuance of the decree rendered by said court upon the bill just mentioned. Had Conn been under no disability by reason of unsoundness of mind, his rights would have been barred irrespective of the holding by the receiver; for adverse possession of lands under written evidence of title for seven years gives title by prescription. Code, §2683. The possession, however, must be public, continuous, exclusive, uninterrupted and peaceable, and be accompanied by a claim of right. Id. §2697. An inchoate prescriptive title may be transferred by the possessor to a successor, so that the successive possessions may be tacked to make out the prescription. Id. §2689. The alleged disability of Conn, had it in fact existed and been continuous, would have hindered the statute of prescription (code, §2686) from running against him at all; but as it was intermittent, the question arose in the case whether the time, or any of it, during which the property was in the hands of a receiver, could be counted as a part of the prescriptive period. The court thought it could be counted, and so instructed the jury. Upon principle we consider this correct, and all the authority we can find on the subject tends to support it. It may safely be affirmed that the property of a debtor in the hands of a receiver, for the purpose of being appropriated for the mutual benefit of the debtor and his creditors, is held by the receiver as a successor of the debtor, if not as a quasi agent for him. As against strangers to the suit such.holding is no .breach of continuity. The statute of limitations (or of prescription) in favor of the debtor’s inchoate prescriptive title is not suspended, but continues to run pending the receiver’s possession. Kerr on Eeceivers, 160-1; Beach on Eeceivers, §§1, 219, 220 ; High on Eeceivers, §§135, 184, 556. There is nothing in our statutes indicative of a purpose by the legislature to stop the running of prescription because a court has possession by its receiver; and certainly there is no necessity for treating the period of such possession as an implied exception, for a stranger who claims the property is not without a remedy. On the contrary he has two remedies, one of which is discretionary with the court whose receiver has possession. The other is matter of right in all cases. By petition pro interesse suo, the claimant to the property held by a receiver is entitled always to a hearing, should the court in its discretion think proper to deny him leave to bring a separate action in his own behalf. 2 Story Eq. 833a; 3 Daniel Chan! Pr. *1744; Beach on Eeeeivers, §654; High on Eeceivers, §139.

The reluctance of courts to engraft exceptions upon statutes of limitations is everywhere apparent. A comprehensive view of it may be had by consulting Tyler on Ejectment, 928-933. And in Jones vs. Bivins, 56 Ga. 538, it was ruled that the exceptions specified in the code, by which a prescriptive title will be defeated, are exhaustive and will not be enlarged by construction.

No prescription works against the rights.of an insane person so long as the insanity continues ; but he has a like number of years after the disability is removed, to assert his claim against the person prescribing. Code, §2686. A prescription commenced ceases against a person under disability, pending the'disability, but on its removal the prior possession may be tacked or added to the subsequent possession to make out the prescription. Id. §2687. In view of these two rules, the court instructed the jury that if adverse possession, with all the characteristics required by the statute, existed after George H. Conn became of age, during periods which added together make more than seven years whilst he was of sufficiently sound mind to understand his rights if they had been explained to him, the jury would find against his administratrix. We think this correct, taking it in the light of the evidence contained in the record. There' is no reasonable probability that Conn was insane at all until 1873, and in so far as the evidence renders definite the intervals of sanity, compared with those of insanity, the former would seem to be about three-fourths, and the latter one-' fourth, of each month. It is true that these definite terms apply directly to certain years (1879 and two or three years, thereafter), but the witness who testifies was a physician who treated him, and who gave it as his professional opinion that similar intervals had been realized by his patient for several years previously.

In 1883, proceedings were had under section 1855 of the code, on a commission of lunacy sued out in Douglas county, the object of which was to have Conn committed to* the lunatic asylum. The finding of the jury on this commission was in Conn’s favor, and that he was not a lunatic. An exemplified .copy of these proceedings was admitted in evidence by the court at the instance of the defendant, over objection by the plaintiff. Several objections are mentioned in the motion for a new trial, hut the only ones verified as having been presented are, that the papers had never been filed or recorded, and that no judgment had been entered thereon. The certificate of the ordinary verifying the exemplification shows that the papers were on file in his office, and there is no law requiring them to be recorded, or providing for or authorizing any judgment to be entered up on the verdict of the jury, inasmuch as the verdict found that the party was not a lunatic. The evidence might have been objectionable for other reasons, but we think it was not amenable to' the objections above specified.

The 5th ground of the motion for a new trial, which complains that the court superadded certain observations after giving in charge the request made by the plaintiff, must fail, because some of the superadded matter is undoubtedly legal. The rule is, that unless the whole of the charge excepted to is illegal, the exception must specifically point out the illegal part.

The alleged newly discovered evidence is so obviously insufficient to require or authorize a new trial, that we need not discuss it.

On the general question of the verdict being warranted by the evidence, there might well be two opinions. Had the court below granted a new trial, we should not have disturbed its judgment. A careful reading of the evidence satisfies us that we should in like manner defer to the decision ’ refusing a new trial There is enough evidence in favor of the verdict to uphold it.

The judgment in the main case being affirmed, the cross-bill of exceptions is dismissed.

Judgment affirmed.  