44 Ga. 274 | Ga. | 1871
It 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: Code, section 2637. 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 of the bond, and his representatives: Fain vs. Gathwright, 5 Georgia Reports, 6; Stamper vs. 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 buys 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 he shall hold, under a written claim of right, in good faith, without fraud on his part. To say that it is his duty to inquire, is in effect to repeal the statute : since, if he is to be held, to all the knowledge, that he would learn, upon proper inquiry, is to insist that he must not buy, unless the vendor has a good title. We have held at this term that, though there was a prior deed from the vendor on record, yet a purchaser, who buys in good faith, and gets a paper claim of right, acquires, in seven years, a prescriptive title. As we have said, nothing but fraud, want of good faith, will vitiate his claim of right. This the law will not presume. This cannot be founded on presumptive notice, on that sort of notice which is based upon record, or which is presumed from want of diligence. Even actual no