Who may recover under section.

- Heirs at law, donees by parol gift of land, partnerships, lessors of plaintiff, and administrators ejected by their successors may recover under O.C.G.A. § 44-11-2. McKay v. Kendrick, 44 Ga. 607 (1872); Boynton v. Brown, 67 Ga. 396 (1881); Wolfe v. Baxter, 86 Ga. 705, 13 S.E. 18 (1891); McDonough & Co. v. Carter & Co., 98 Ga. 703, 25 S.E. 938 (1896); Ellis v. Dasher, 101 Ga. 5, 29 S.E. 268 (1897); Watkins v. Nugen, 118 Ga. 375, 45 S.E. 260 (1903); Whitehead v. Pitts, 127 Ga. 774, 56 S.E. 1004 (1907).

A cestui of an executed trust may maintain an action of ejectment. Glover v. Stamps, 73 Ga. 209, 54 Am. R. 870 (1884).

Squatter may be ejected. Eaton v. Freeman, 63 Ga. 535 (1879).

Section applies to equity bills.

- O.C.G.A. § 44-11-2 applies where a bill in equity was filed as the equivalent of an action of ejectment. Nolan v. Pelham, 77 Ga. 262, 2 S.E. 639 (1886).

With prior possession alone, section allows recovery from subsequent unlawful occupant.

- While under O.C.G.A. § 44-11-1, a plaintiff in ejectment must recover on the strength of plaintiff's own title, and not on the weakness of the defendant's title, under O.C.G.A. § 44-11-2 plaintiff may recover upon prior possession alone, against one who subsequently acquires possession of the land by mere entry and without any lawful right whatever. Smith v. Bailey, 183 Ga. 869, 189 S.E. 905 (1937).

Prior possession requires occupancy.

- A mere entry upon premises, when unaccompanied by an actual occupancy, is not a prior possession. Flannery & Co. v. Hightower, 97 Ga. 592, 25 S.E. 371 (1895).

Constructive possession under color of title.

- Where reliance is had upon possession alone, and not upon possession under color of title, the possession must be actual; but where the possession is accompanied by color of title, the possession relied upon may be either actual or constructive. Smith v. Bailey, 183 Ga. 869, 189 S.E. 905 (1937).

Possession for less than prescriptive period supports recovery for damages.

- Possession as referred to in O.C.G.A. § 44-11-2, for less than the prescriptive period, will support a recovery against one who after such possession commenced enters without a lawful right. Slaughter v. Land, 194 Ga. 156, 21 S.E.2d 72 (1942).

Prior possession sufficient for recovery against trespasser.

- Prior possession is some evidence of title, and is sufficient as a basis for recovery of possession as against a trespasser. Terrell v. Gould, 168 Ga. 607, 148 S.E. 515 (1929); Chandler v. Raney, 201 Ga. 544, 40 S.E.2d 661 (1946); Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970).

Where a plaintiff relies on prior possession, plaintiff need not aver that the defendant is a trespasser. Horton v. Murden, 117 Ga. 72, 42 S.E. 786 (1903); Moss v. Chappell, 126 Ga. 196, 54 S.E. 968 (1906); Jackson v. Strickland, 127 Ga. 106, 56 S.E. 107 (1906).

Entry under mere claim of right not sufficient to defeat prior possession, for a mere claim of right is not a "lawful right" of entry within the meaning of O.C.G.A. § 44-11-2. Chandler v. Raney, 201 Ga. 644, 40 S.E.2d 661 (1946); Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970).

Defendant must prove own title, not that of third person.

- A defendant in an action of ejectment, where prior possession is shown in the plaintiff, cannot successfully defend by showing merely that the plaintiff did not in fact have title, or by setting up outstanding title in a third person, unless defendant connects personally with that title. Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970); Fessenden v. Parrigin, 228 Ga. 61, 183 S.E.2d 771 (1971).

Defendant may set up a bona fide possession with title in a third person. Johnson v. Lancaster, 5 Ga. 39 (1848); Jones v. Scoggins, 11 Ga. 119 (1852).

Where lessor of plaintiff was ejected, plaintiff cannot be said to have voluntarily abandoned, because plaintiff did not resume possession immediately upon the land becoming vacant again. McKay v. Kendrick, 44 Ga. 607 (1872); Lovett v. Taylor, 144 Ga. 210, 87 S.E. 7 (1915).

Action proper against possessor where petition alleges possessor claims under will.

- If the petition in ejectment alleges that the defendant as an individual is in possession of the property claiming the title thereto as a devisee under the will, there is no exemption from the action, and the action is properly brought against the party in possession. Sharp v. Autry, 183 Ga. 282, 188 S.E. 354 (1936).

Possession at time of death supports administrator's claim for land and mesne profit.

- If a person dies while in possession of land under a bona fide claim of right thereto, such possession at the time of death is prima facie evidence of title in the deceased that will support an action of complaint for land and mesne profit instituted by the administrator of such deceased person against a third person, who after the death of the intestate entered possession adversely and not under a better title. Segars v. Crump, 177 Ga. 665, 170 S.E. 785 (1933).

Bona fide entry may be made under void deed. Watkins v. Nugen, 118 Ga. 375, 45 S.E. 260 (1903); Wilcox v. Moore, 118 Ga. 351, 45 S.E. 400 (1903).

Utility not ejectable if appropriated land becomes necessary for public service.

- If a landowner permits, without legal objection, a public utility company to appropriate the owner's land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, and the rights of the public intervene to such extent that to oust the company would interrupt the service and deny it to the public, to protect the public rather than the company, the landowner is estopped from recovering the land in ejectment or from enjoining its use for the service, but may, if the owner moves in time, sue for damages. Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526, 266 S.E.2d 148 (1980).

Plaintiff in fi. fa. has burden if defendant not in possession.

- Where property is levied on under execution and claimed by a third party, O.C.G.A. § 9-13-102 imposes the burden of proof on the plaintiff in fi. fa. in all cases where the property levied on is, at the time of such levy, not in possession of the defendant in execution. One of the ways in which the onus may be carried is to show possession in the defendant in fi. fa. after the rendition of the judgment. Such proof will raise a presumption of title in the defendant and require a finding in favor of the plaintiff in fi. fa. in the absence of rebutting evidence. Roughton v. Roughton, 178 Ga. 367, 173 S.E. 673 (1934).

Defendant has burden to show record title or adverse possession.

- The burden is on the defendant to show that defendant has a title superior to the plaintiffs' rights acquired by possession either by showing record title to the property, or title by adverse possession. Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970).

Evidence of prior possession shifts burden of proof.

- Evidence of prior possession alone is sufficient to require the defendant to prove that defendant has a better title than that of the plaintiff. Terrell v. Gould, 158 Ga. 607, 148 S.E. 515 (1929); Crews v. Russell, 199 Ga. 732, 35 S.E.2d 444 (1945); Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970).

Nonsuit proper where right to possession not proven. Priester v. Melton, 123 Ga. 375, 51 S.E. 330 (1905); Delay v. Felton, 133 Ga. 15, 65 S.E. 122 (1909).

Nonsuit proper where property given up with animo revertendi.

- A nonsuit is proper where premises are relinquished with an animo revertendi. Administrators of Jones v. Nunn, 12 Ga. 469 (1853); McKay v. Kendrick, 44 Ga. 607 (1872); King v. Sears, 91 Ga. 577, 18 S.E. 830 (1893); Jackson v. Strickland, 127 Ga. 106, 56 S.E. 107 (1906); Lovett v. Taylor, 144 Ga. 210, 87 S.E. 7 (1915); Walton v. Whitton, 158 Ga. 741, 124 S.E. 338 (1924).

Ejectment petition properly denied.

- Where a successor received title to a disputed parcel of land by means of a quitclaim deed, an original property owner was not able in an ejectment petition to seek recovery based upon prior possession, which required that the defendant subsequently acquired possession by mere entry and without any lawful right whatsoever. Brooks v. Green, 277 Ga. 722, 594 S.E.2d 629 (2004).

Cited in Buckner v. Chambliss, 30 Ga. 652 (1860); Jones v. Easley, 53 Ga. 454 (1873); Johnson v. Jones, 68 Ga. 825 (1882); Hitch v. Robinson, 73 Ga. 140 (1884); Parker v. Waycross & F.R.R., 81 Ga. 387, 8 S.E. 871 (1889); Gormley v. Brazil, 180 Ga. 383, 179 S.E. 81 (1935); Couey v. Talalah Estates Corp., 183 Ga. 442, 188 S.E. 822 (1936); Crawford v. Taliaferro, 187 Ga. 381, 200 S.E. 776 (1938); Crump v. McEntire, 190 Ga. 684, 10 S.E.2d 186 (1940); Payne v. Nix, 193 Ga. 4, 17 S.E.2d 67 (1941); Yerbey v. Chandler, 194 Ga. 263, 21 S.E.2d 636 (1942); Nelms v. Venable, 199 Ga. 109, 33 S.E.2d 418 (1945); Bethel Farm Bureau v. Anderson, 217 Ga. 529, 123 S.E.2d 754 (1962); John Doe v. Roe, 234 Ga. 127, 214 S.E.2d 880 (1975).

Am. Jur. 2d.

- 25 Am. Jur. 2d, Ejectment, § 19 et seq.

C.J.S.

- 28A C.J.S., Ejectment, §§ 16, 17.