34 S.E.2d 875 | Ga. | 1945
The evidence conclusively showing that the defendant and his predecessors in title acquired color of title to the property in dispute and bona fide entered into possession under their respective paper titles under a claim of right, and that the adverse possession of the defendant together with that of his predecessors in title was for more than seven years, the prescriptive title of the defendant thereby ripened and extinguished all inconsistent titles. Accordingly, the court did not err in directing a verdict for the defendant in the ejectment suit brought by the petitioner.
The defendant Dolvin claimed in one ground of his defense that he had acquired a good and indefeasible title by prescription, in that he and his predecessors in title had had adverse possession of the property under color of title for more than seven years.
The evidence showed that the power in the security deed to the bank as trustee provided for advertisement as claimed by the petitioner, and that advertisement was run in a newspaper not published in the City of Atlanta, but that the error was unintentional and inadvertent and free from fraud, and that it was not detected by the bank until about May, 1936; that the bank, DeWitt Nunn, and Oliver Dolvin had, upon acquiring title to the property, respectively, entered into possession as owners, that the tenants attorned to them, that they collected the rents, paid the taxes, and together had had open, notorious, exclusive, and uninterrupted possession from 1930 until the present time; that, though in 1936 the bank detected the error in the advertisement, it thought it had a good title when it took deed upon foreclosure in 1930; that DeWitt Nunn thought he had a good title from the bank though the evidence was in conflict as to whether or not his attention had been called to the irregularity in the advertising by the bank as trustee; and that Oliver Dolvin thought he acquired a good title and took without knowledge of any irregularity.
The court directed a verdict for the defendant, and the petitioner's motion for new trial upon the general grounds and a special ground complaining of the direction of the verdict was overruled, and the petitioner excepted.
"Possession to be the foundation of a prescription must be in the right of the possessor, and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted and peaceable, and be accompanied by a claim of right. Code, § 85-402. Color of title is a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law." Beverly v. Burke,
An inchoate prescriptive title may be transferred by a possessor to a successor, so that the successive possessions may be tacked to make out the prescription, except that the innocent purchaser may not tack to his own the possession of a grantor whose possession originated in fraud of the true owner. Code, §§ 85-415, 85-416. Blalock v. Redwine,
It is not claimed by the petitioner that in the foreclosure proceeding in 1930 the bank as trustee was guilty of any fraudulent intent in mistakenly advertising the sale in a newspaper other than the one specified in the power of sale in the security deed, or that the bank itself as purchaser was guilty of any fraud. The sole contention is that the sale and deed executed to the bank were void, and that, as the purchaser under foreclosure of the second security deed, the petitioner is entitled to the property upon payment of any indebtedness due on the original loan and which she tendered into court. The defendant, however, in one ground of his defense stands upon title by adverse possession of himself and his predecessors for more than seven years under color of title bona fide, and, hence, under the law the validity of the deed obtained by the bank is not determinative of the issue here. This contention must be upheld and the question becomes: was there color of title and combined adverse possession for the requisite period without fraud being shown in any of the possessors?
The bank, as purchaser of the property in 1930, was not cognizant of the mistake in advertising until 1936. That fact is unquestioned. In 1930, upon purchase by the bank, the debtor yielded the possession and died in 1941 without having made any claim to the property or asserting any right of redemption. All the elements of adverse possession by the bank are shown to have been present. The knowledge it acquired in 1936 as to the error in advertising the property in the foreclosure proceeding did not relate back to the time of its entry in 1930, and its bona fides in such entry was unaffected thereby. The property involved was property described. It is clear, therefore, that it had an inchoate title by prescription which would ripen in seven years of adverse *642 possession. Before the title had ripened, it quitclaimed the same property to DeWitt Nunn on September 1, 1936, and he immediately went into possession. There was conflicting testimony as to whether or not Nunn was apprised of the error in advertising in the original foreclosure proceeding, but even if he was aware of such irregularity and the defect would render the bank's deed void as contended by the petitioner, and not merely voidable, which question it is unnecessary here to decide, knowledge of that irregularity would not, under the authorities above cited, necessarily militate against him. If in fact he honestly believed, as his uncontroverted testimony shows, that he was acquiring a good title from the bank, and thus entered into possession with all the elements of adverse possession thereafter present he too had an inchoate title which could ripen into a good title in seven years. The defendant Dolvin's uncontroverted testimony was that he took his warranty deed from Nunn in the honest belief that he acquired a good title and without knowledge of the irregularity in advertising in the foreclosure proceeding in 1930, and that he entered into possession as owner. The evidence also shows in his favor all the elements of adverse possession.
It thus appears from the evidence that the defendant Dolvin and his predecessors in title had color of title to the property in dispute, and that the adverse possession of such predecessors when tacked to his own was for a period of about thirteen years, and thus fully met all the requirements of the statute. The title thus acquired extinguished all inconsistent title and became the true title to the property.
It might be added that the act of 1937 (Ga. L. 1937, p. 755), codified as § 85-417 in Ga. Code Ann., and providing that "prescription shall not run against the owner or holder of a mortgage, deed to secure debt, bill of sale to secure debt, or other instrument creating a lien on or conveying an interest in real or personal property as security for debt, in favor of a person who has actual or constructive notice of such instrument," has no application here. This is true notwithstanding that the defendant Dolvin did not acquire any deed until August 5, 1939, after the passage of the act and at a time when the plaintiff's second security deed had been duly recorded, and though without Dolvin's possession a total period of seven-years' adverse possession would not have *643
resulted. There is nothing in the act of 1937 indicating an intention by the legislature to deprive a party in possession of any right he had already acquired, and that the possession which had been running and ripening into title before February 23, 1937, the date the act became effective, should be lost. ComparePollard v. Tait,
Nor could the fact that the trustee, when some question had arisen as to whether or not the bank had acquired a good title, began, though it did not complete, a second foreclosure, and that, on July 10, 1936, after the first advertisement appeared, the *644 amount of rents collected was entered as a credit on the note of the debtor, operate to show any abandonment by the bank of its adverse possession.
The verdict directed by the court was demanded as a matter of law, and the court did not err in overruling the plaintiff's motion for new trial.
Judgment affirmed. Bell, C. J., Jenkins, P. J., Atkinson andWyatt, JJ., concur.