150 Ga. 498 | Ga. | 1920
R. B. Baxter sued J. M. Phillips to recover certain land. There was a verdict for the defendant, and the plaintiff’s motion for a new trial was overruled. There was evidence submitted on the trial tending to show the following as the facts in the case:
Baxter, the owner of the land in controversy, being in possession, sold the same to Walker on December 21, 1906, taking his note for the purchase-money, and giving him bond for title conditioned upon the payment of the note. Walker entered into possession under such bond, and so remained until November 1, 1910, when he sold the land to Phillips, giving him a bond for title conditioned upon the payment of his note to Walker for the purchase-price agreed to be paid him. On December 6, 1915, Phillips having paid his note to Walker for the purchase-price, the latter executed and delivered to Phillips a deed to the land. Phillips went into possession under Walker on November 1, 1910, in pursuance of the bond from Walker to him, and continued in the open, notorious, uninterrupted, and peaceable possession thereafter, claiming it as his own, and making valuable improvements thereon with the actual knowledge of Baxter, who gave Phillips no intimation as to his claim to the land. Walker represented to Phillips that he had good title to the land, and Phillips in purchasing the land from Walker acted upon such representation, believing Walker’s title to be good, and having no knowledge or notice of any interest which Baxter had in the land until the institution of Baxter’s suit against him for its recovery on February 23, 1918. One of the instructions complained of in Baxter’s motion for new trial, and mainly relied on here, is substantially to the effect that if the jury should believe from the evidence the facts to be as above stated, then Phillips would have a good prescriptive title to the land by seven years’ adverse possession under color of title, although Walker had
In Garrett v. Adrain, 44 Ga. 274, it appears that Adrain, owner of the land in dispute, sold it to McDonald on a credit till 1854, giving him bond for title. McDonald went into possession, and never paid but half of the purchase-price. In 1857 McDonald sold to Garrett, taking his notes for the purchase-price and executing to him a bond for title, and telling him that his, McDonald’s, title to the land was perfect. Garrett took possession in 1857, paid the purchase-money he owed McDonald in 1861 or 1862, and remained continuously in possession, claiming the land as his up to the time Adrain brought an action against him for its recovery in December, 1869, which was the first notice he had that McDonald did not have a perfect title to the premises. Garrett set up title by prescription as a defense. The trial court held that he had no such title as against Adrain; and upon review this court reversed the judgment. The opinion delivered by Judge McOay in that case is so clear, decisive, and, we think, so conclusive as to the present case, that we take the liberty of quoting at length from it. ITe said: “Tt is a well-settled rule that a permissive possession is not adverse, and cannot be the foundation of a prescriptive title against the person permitting the possession: [citing what is now section 4164 of the Code of 1910]. But it is equally well settled, in this State, that seven years’ possession, under a bond for titles, is a good prescriptive title against everybody but the obligee [obligor?] of the bond, and his representatives: Fain v. Garthright, 5 Georgia Reports, 6; Stamper v. Griffin, 12 Georgia Reports, 450. That the maker of the bond has no title, or is in possession by permission, makes no difference. The very object of the law allowing title by prescription is to protect a defective title against a perfect paper one, after seven years’ peaceable possession. If the one who makes the bond is a mere squatter, a tenant, or is in under a forged title, or as trustee, and the purchaser buj^s in good faith and goes into possession, thinking his title good, he is in adversely. If this were not so, the title by prescription could-never arise at all; since, if the person prescribing must have bought from one having a right to sell, he gets a good title without the prescription. The only limitation put by the law on his right is, that ho shall hold, under a written claim
In Fain v. Garthright, 5 Ga. 6 (4), it is held: “A person who enters into possession of land under a contract of purchase, with bond for titles when the purchase-money is paid, is in possession under color of title, and his possession is adverse, although he has
No distinction on principle can be made between the Garrett case and the case at bar. It can not be said with any degree of certainty from the reported agreed statement of facts in the Garrett case, or from the record in that case on file in this court, that Garrett, who was in possession of the land under a bond for title from McDonald, his immediate vendor, had paid the purchase-price “in 1861 or 1862,” due McDonald, seven years before Adrain, whose bond for title McDonald held, brought an action “in December, 1869,” against Garrett for the recovery of the premises. Payment of the purchase-price, or any part thereof, is not mentioned or in any way referred to in the opinion delivered in the case. The opinion is based upon the rule, which was stated to be well settled in this State, “ that seven years’ possession, under a bond for titles, is a good prescriptive title against everybody but the obligor of the bond, and his representatives. ” We are unable to perceive how the payment by Garrett, in possession under a bond for title from McDonald, of the purchase-money he owed McDonald, could in any way affect the rights of Adrain, who had sold to and put McDonald in possession under a bond for title. Garrett was not attempting to prescribe against his immediate vendor, McDonald, who had given him bond for title, but against Adrain. Of course, he could have prescribed against McDonald if he had been paid the full purchase-price due him by Garrett. In Jones v. Coates, 145 Ga. 397 (89 S. E. 334), it is said: “But if at the time he bought and took his bond for title and possession thereunder he did not have notice, this would furnish such color of title and possession as would afford a basis for prescription. One can prescribe under a bond for
Adams v. Guerard, 29 Ga. 651 (2), 673 (76 Am. D. 624) holds: "Possession under another is adverse to everybody but that other under whom it is held.” Wingfield v. Davis, 53 Ga. 655, holds, under the facts of the case: “1. Where a purchaser under bond for title sold by absolute deed to claimant, who bought without notice that his vendor was in possession under bond, and who occupied the property continuously for a period longer ,than seven years, exercising acts of ownership, such claimant acquired a valid title by prescription. 2. The possession of the premises in dispute by claimant, and the exercise of acts of ownership, was notice to the holder of the true title of the adverse claim.” In Jones v. Bivins, 56 Ga. 538, it is held: “The exceptions specified in the Code, by which a prescriptive title will.be defeated, are exhaustive, and will not be enlarged by construction.” It is said in the opinion, “This case comes within the principles ruled by this court in Wingfield v. Davis, 53 Ga. 655; see also Garrett v. Adrain, 44 Georgia Deports, 275. ” Hunt v. Pond, 67 Ga. 578, holds: "A prescriptive title which meets the requirements prescribed by the Code will not be defeated by the fact that a grantor
In Powell on Actions for Land § 381, it is said: “Until the purchase-money is fully paid, the vendee’s possession is permissive, and therefore he can not acquire prescriptive title against Ms vendor [Italics ours], A bond for title is color of title. Hence the holder of a bond for title may, through seven years adverse’ possession, acquire title against all persons except his vendor and persons under disabilities. ” The section continues: “ If one holding under bond for title conveys to one who takes possession in good faith and without notice of the subordinate possession held by his grantor, the latter’s possession becomes adverse to his grantor’s vendor, and may ripen into a prescription [citing Garrett v. Adrain, supra]. Aliter, if the purchaser has notice of the relationship sustained by his grantor.” The learned author here states the law as settled in this State by many decisions of this court which he cites, to some of which we have hereinbefore adverted and discussed. Upon examination it will be readily seen that there is nothing in the following cases contrary to Judge Powell’s statement of the law, viz.: Parrott v. Baker, 82 Ga. 364 (9 S. E. 1068); Rutherford v. Hobbs, 63 Ga. 243; Hines v. Rutherford, 67 Ga. 606. The holding in these cases is to the effect that the holder of a bond for title with the purchase-money unpaid is never in adverse possession to the maker of the bond. But there is nothing held in any of these cases to the effect that if one holding under bond for title conveys to one who takes possession in good faith, and without notice of his immediate grantor or obligor holding permissively, he can not prescribe against his immediate grantor’s vendor or obligor.
We will now refer to several cases in which rulings are apparently made contrary to Garrett v. Adrain, supra. In Hawkins v.
Plaintiff in error can get no' comfort from Stokes v. Maxwell, 53 Ga. 657, wherein it is held: “Where a claimant held land for seven years under a title independent of that of the mortgagor, he
We have not referred to all of the decisions of this court on the subject under discussion, but to a sufficient number of them directly on the point to show that the trial judge did not err in the charge assigned as error.
Judgment affirmed.