149 Ga. 276 | Ga. | 1919
In June, 1916, D. C. Corbett was appointed administrator of his wife’s estate, which included a certain tract of
That Corbett’s lease to Young was void as against the estate is beyond question. Sapp v. Cline, 131 Ga. 433, 436 (62 S. E. 529); Haden v. Sims, 127 Ga. 717, 719 (56 S. E. 989). The controlling question, therefore, is whether the sale by the administrator is valid and passed title to Booth to the land and timber growing thereon. If it is, the lease to Young being absolutely void, the turpentine privilege went with the land, and Booth was entitled to an injunction under the evidence submitted upon the hearing. Section 4185 of the Civil Code declares that “A deed to lands, made while the same are held adversely to the maker of the deed, is not void.” That section is the result of legislative enactment (Acts 1859, p. 24); and it abolished the common-law rule making void all conveyances of land at the time in the adverse possession of another. Chapman v. Floyd, 68 Ga. 455 (3). The common-law rule, as a special rule applicable to administrator’s sales, has, however, been preserved in this State. Section 4033 of the code
The argument on behalf of the plaintiff in error is impressive, and may be summarized as follows: The lease to Young, if valid, conveyed no legal estate or interest in the land, and, being invalid, is no more than color of title to an easement or license; the words “held adversely” in section 4033 of the Civil Code imply actual, adverse, and exclusive possession; there can be no such thing as adverse possession of a mere right to work the trees for turpentine; neither ejectment nor other form of real action will lie to “-recover possession” of such right; and in no event is Young’s possession adverse to the estate, because under and subordinate to the title of the administrator. As wo have indicated, however, the lessee is not a mere tenant, with the right to use the land and to appropriate its annual yield to himself. His right, under the lease, if valid, would include not merely the right of occupancy, but the right to take from the land something which would permanently decrease its market value. While for many purposes his lease may amount to no more than a mere license, nevertheless it granted to Young a “turpentine lease on all turpentine timbers” for a term specified, on lands described, with the right “to have and to hold said leased lands for said purposes,”
Judgment affirmed.