Savannah morning news. [volume] (Savannah) 1868-1887, 1883-02-16

O'Byrne ct al, executors, VS.. Feeley ct
al. Ejectment, from Chatham. Wills.
Estates. Title. Prescription. Statute
of limitations. Mesne profits. Set off.
HALL, j.
1. A will, after giving certain specific
legacies, bequeathed the balance of tesla
tors property, both real and personal, to his
son, and provided that the latter should
''receiYe all the proceeds of the rents, in
terest, ETC., which may accrue from the
prOperty-fOr his own and special use,
after deducting the necessary expenses
on the same property, but in no case what
sOever shall he be allowed, until he shall
have arrived at the age of twenty-One
years, the control or management of
the said property or estate, but
allowed such sums as my executors
may deem necessary for his education and
maintenance. / further command that
my son shall not have the power of dis
posing or selling the above property dur
ing his natural life, his possession or ben
eft of the same being but for his natural
life, but in case of any lawful issue by
him, then the same shall descend to his
child or children for their use and benefit
and to be used or disposed of as they may
think proper or fit. But in the event of no
lawful issue from him, the allowed named
property shall be equally divided among
my relatives named in this will" 1t also
provided that the executors appointed
should see to the education of teStator's
son:
Held, that such will created a life es-
tate in testatOr'S son, with remainder to
the child or children of such son, or in de-
fault of such children to the relatives of
the testatOr named in his will.
2. Upon the birth of child to the son of
testator, the trust or quasi trust ceased,
the control of the executors terminated
and the remainder in fee vested in such
child.
(a). She being a minor when the re-
mainder vested prescription did not run
against her. 81 Ca, 50; compare GA Id,
676.
8. Where, pending an action of eject,
ment by a minor above the age of four
teen, she died testate, the case did not
abate, nor could demises be added in the
name of her guardian and egalrepresenta-
tive; but such legal representative could
be made a party, and the action could
then proceed. 81 Ca Il; 66 Id, 273.
4. Since the adoption of the Code there
has been no statute of limitations in this
State in respect to action to recover realty;
nor were such actions included in the
limitation act of March 16, 1869. IS Ga, 439;
Al Ga, 302; Glaze VS.. W. d A. r. R., and
kirschner VS.. same. september term,
1881, not yet published.)
(a). If the act of 1869 were applicable,
the lessor was a minor when her right of
action accrued, and so continued to the
time of the commencement Of this suit;
nor does it appear when a guardian was
appointed for her. She would not there
fore be barred. 40 Ga, ATS; 81 Id, 459- 81.
3. Where a tenant for life, as such,
makes valuable improvements upon the
land during his occupancy, these improve
ments are not a charge upon the property
when it comes to the remainderman.
Where improvements of a permanent
character are made in good faith by one
who has no claim of right to the possess
the value of such improvements may be
allowed to the extent of the rent found to
be due for the use of the land, but no fur
Their. But where the premises are held
bona fide under independent and adverse
claims of title, then the party making
such Improvements is entitled to have
their full value allowed him. 81 Ga, SO;
10 Am. Dec, 351 (note); 81 n. c., 3S5;
Tyler on Eject, $40; Dew, 81; Ga,
440; 80 U. s., 513.
(a). Our Code makes a distinction in re-
gard to setting off Improvements against
mesne profits between one who is bona
fide in possession under claim of right,
and mere trespasser. In the latter case,
mesne profits are not to be reduced below
the sum which the premises would have
been worth without such improvements;
in the former case, no limit is fixed. Code
ss346S, 1905.
(b), In the present case, testatOr's son
and those claiming under him held the
property in good faith, believing that they
had title to the entire fee, and made i'm
provements under this belief. They were
therefore entitled to set off their value.
Co. The bringing of this suit and the
decision in 81 Ga, II, did not render the
possession of the defendant thereafter
mala fide. Viner's Abr. vol. %, 124.
6. A defendant in ejectment may clam
compensation for improvements made by
his predecessor in the title, under whom
he holds by warranty deed, as fully as
such warrantOr could have done. Al Ga,
$40; SO Id, 80.
Z. A defendant in ejectment cannot be
compelled to pay an enhanced amount as
rent in consequence of his own improve
ments. 4COwen, 1853; Sedg. and Wait ON
Tr. of Title, s678.
(a). Whether defendant in ejectment
may have verdict for the excess in value
of improvements over rents, which shall
constitute a lien ON land to the extent of
such excess, is not decided, as not being
made by the pleadipgs or passed upon by
the court below.
8. The verdict was right under the evil
dence.
8. The testimony Of WHY was properly
admitted. He was not a party to the rec
ord, and had he been, he was competent to
testify to matters not transpiring between
himself and deceased. Code, 1884; so Ga,
Ala, 4a0.
Judgment affirmed.
John G., Clark, Lester & Ravenel, Geo.
A. Mercer for plaintiffs in error; Chisholm
& Erwin, j. r. Saussy for defendants.
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