Judgment affirmed.
The plaintiff obtained a verdict for $350, and defendant’s motion for a new trial was overruled. The motion contained the following grounds :
The court erred in admitting a bond for title from Mrs. Greene to plaintiff, dated July 2,1890, and a deed from Mrs. Greene to plaintiff, dated July 2, 1891, the papers being offered together and each of them being for the property described in the declaration. The objections were, that these papers were at variance with the declaration which alleged title in plaintiff when the suit was filed on November 6, 1890, the papers separately or together showing that there was no title or right of action in plaintiff at the commencement of the suit, that Avhen the suit was instituted the title was in Mrs. Greene and the right of action, if any, Avas either in her or in her and plaintiff jointly, and a subsequently acquired title by plaintiff from her was inadmissible to sustain an action in favor of plaintiff, for injury to the freehold, commenced before he had paid for the property or acquired title thereto.
Error in charging: “If you believe from the evidence that the plaintiff was the owner and in possession of the land described in the declaration, and the defendant in the manner alleged took the strip described, or any part thereof, and appropriated same for public purposes, such as Avidening a road, the plaintiff would be entitled to recover on this branch of the case such ■ sum as the evidence shows was the actual market value of the land so taken at the time it was taken.” The error alleged as to this charge was, that it did not limit plaintiff’s right to recover for injury to the freehold to an ownership and possession existing at the time of the inj ury or even at the commencement of the suit, but, on the contrary, Avas a positive instruction that any ownership and possession at any time by the plaintiff authorized a recovery by him of the defendant, provided the defendant, in the manner alleged in the declaration, took the strip described or any part thereof, and appropriated the same for public purposes, the evidence of plaintiff shoAving that at the time the injury was done to the freehold plaintiff was in possession only under a bond for title Avith over two thirds of the purchase price unpaid, and that the legal title was then in Mrs. Greene and did not pass out of her until the second day of July, 1891.
Error in refusing to charge as requested:
“ If you believe from the evidence that E. H. Greene resided on the land claimed to have been damaged, and was the agent or overseer of his wife, and that he had written notice of the application for the widening of the road, and consented to the widening, or his wife failed to put in a claim for damages, and at the time the road was widened the title to the property was in Mrs. Samantha M. Greene, she and those claiming under her would be estopped from claiming damages.
“ If you believe from the evidence that the commissioners of roads and revenues in and for the county of Fulton, at the October term, 1889, of their court, passed an order in relation to this road, reciting in their order authorizing the widening of the road, that notice of such widening had been published as required by law, the presumption is that any notice required by law had been given, and, in the absence of proof to the contrary, such judgment is conclusive that due and legal notice had been given.
“If in the order of the commissioners of roads and revenues for Fulton county authorizing the widening of the road, it was granted with the proviso that there should be no expense to Fulton county for right of way or for opening up the same, the district commissioners would have no right to exceed their authority, and the county would not be liable for any damage caused by the district commissioners in exceeding their authority.”
Candler & Thomson, for plaintiff in error.
Arnold & Arnold, contra.