131 Ga. 546 | Ga. | 1908
This is an equitable petition to cancel a deed as a cloud on the plaintiff’s title, and for relief incidental thereto. The plaintiff and the defendant claimed the land under deeds from a common grantor, Mrs. Alma Carpenter. The plaintiff was
The first step in the plaintiff’s case was to prove title to the land. The essence of this suit was to remove a cloud on his title; and if he has no title to the land, he can not prevail. The plaintiff testified that he paid his wife the consideration recited in her deed to him, and it was admitted that the' sale was without an order of the superior court of the county of the wife’s domicile. A sale made by a married woman to her husband, without being allowed by the order of the superior court of the wife’s domicile, is invalid. Civil Code, §2490; Fulgham v. Pate, 77 Ga. 459. The plaintiff’s deed was therefore void as title. He contended, however, that he had been in adverse possession of the land under this void deed for more than seven years, and that he had a good prescriptive title. A defective or void deed will serve as color of title, and entry and possession thereunder in good faith will ordinarily be adverse. Fain v. Garthrigh, 5 Ga. 14; Moody v. Fleming, 4 Ga. 115 (48 S. E. 210); Gittens v. Lowry, 15 Ga. 336. But is the general rule applicable to the case as presented by this record ? During the interval between the execution of the two deeds the plaintiff and his wife resided on the land. Shortly after his wife made the deed to her mother, the latter gave the plaintiff written notice that she had purchased the land, and that he must quit the premises. He testified that he left the premises with the understanding that his wife was to rent the land in her own name, pay the taxes, and use the rents. Under the facts appearing in the record the plaintiff failed to show a prescriptive title, unless his possession of the land during the joint occupancy of himself and wife was adverse to the wife, so as to be the basis of a prescription predicated on the void deed from his wife. In recognition of
Judgment affirmed.