179 Ga. 744 | Ga. | 1934
This was a suit for land and mesne profits. The land consisted of two adjacent tracts which the plaintiff designated as tracts A and B respectively. As to tract A the defendant claimed, among other things, that he had acquired a good prescriptive title by adverse possession, under written evidence of title, for seven years, relying upon a deed executed to him as purchaser under exercise of a power of sale contained in a security deed to which the plaintiff’s title was subject. The power of sale was defectively executed, but the deed to the defendant amounted to color of title. The defendant made a libe claim of prescription as to both tracts, in virtue of a deed from one who had purchased the property at
The evidence authorized the inference that the levy under the tax execution was excessive; and-it also appears that the defendant was not in possession under the tax deed for seven years, exclusive of the redemption period. See, in this connection, Brooks v. Rooney, 11 Ga. 423(5) (53 Am. D. 430); Harper v. Durden, 177 Ga. 216 (170 S. E. 45); Long Realty Co. v. First National Bank, 177 Ga. 440 (170 S. E. 485); Newsom v. Dade County, 177 Ga. 612, 615 (171 S. E. 145). Whether or not in these circumstances the evidence would have authorized a verdict for the defendant- on his claim of title by prescription or otherwise under the tax deeds, which related to both tracts, the jury would have been authorized to find for the defendant as to tract A, on his claim of prescription Under the deed made to him in pursurance of' the power of sale contained in the security deed.
“A purchaser who buys in good faith and gets a paper claim of right acquires, in seven years, a prescriptive title. . . Nothing but fraud, want of good faith, will vitiate his claim of right: This the law will not presume. This can not be founded on presumptive notice, on that sort of notice which is based upon record, or which is presumed from want of diligence.” Garrett v. Adrain, 44 Ga. 274, 276. “It is not legal but moral fraud, a consciousness of doing wrong, which, in' the origin of the possession of land, prevents a prescription from running in favor of the possessor.” Ellis v. Dasher, 101 Ga. 5, 8 (29 S. E. 268), and cit. “To defeat prescriptive title, the fraud of the party claiming there
In addition to the facts stated above, the defendant filed a plea of estoppel as to tract A, and in his motion for a new trial he assigned error upon a charge of the court relating to this plea, contending that the charge was not applicable to any issue made by the 'evidence. This contention is not sustained by the record.
The plaintiff contended that in no circumstances could the defendant assert a counter-claim for amounts paid by him for taxes on the property. This contention was made by a demurrer to the defendant’s answer, and also by an exception to a portion of the charge of court in the motion for new trial. In the brief of counsel for the plaintiff it is merely insisted that such a set-off is not allowed by any of the Code provisions relating to improvements. Limiting our decision accordingly, we are of the opinion that where the defendant in a complaint for land has acted in good faith he may set off against mesne profits sums paid by him for taxes on the property. Such a claim is founded upon principles of equity, and may be asserted independently of statute. Such was formerly the rule as to improvements, and it would seem that a counterclaim for taxes would rest upon the same principle. See Dudley v. Johnson, 102 Ga. 1 (29 S. E. 50); Harper v. Durden, supra; 19 C. J. 1247-8. As indicated above, the contention made in this case does not require a decision as to whether such a claim -of set-off could be-sustained in the absence-of good faith, or as to what other qualifications and limitations might be applicable thereto. 'The contention as made is without merit; and while the present decision will go no further upon this, question, we call attention to the following authorities: Wallace v. Berdell, 101 N. Y. 13 (3 N. E. 769; Ringhouse v. Keener, 63 Ill. 230, 237; Muthersbaugh v. McCabe, 22 Pa. Sup. 587; McInerney v. Beck, 10 Wash. 515 (39 Pac. 130); Holly v. Gibbons, N. Y. (63 N. E. 731); Dougherty v. White, 112 Neb. 675 (200. N. W. 884, 36 A. L. R. 425); 9 R. C. L. 946-955; 31 C. J. 320, § 28; 19 C. J. 1247-8, § 390, and cit. The present record do.es not involve any question as to the statute of limitations in regard to the counterclaim for taxes.
Other questions raised in the plaintiff’s motion for new trial are not referred to in the brief of counsel, and are treated as abandoned.
It is contended by the defendant that all errors complained of by the plantiff were harmless, because the evidence demanded' a verdict in favor of the defendant on the question of title. Whether or not this contention might be sustained as to tract A, it isi not correct as to tract B; and the verdict was -entire, both as to the land and as to the charge placed thereon in favor of the defendant. It follows that the judgment refusing a new trial, as complained of in each bill of exceptions, must be reversed, and the whole case remanded.
Judgment reversed on each bill of exceptions.