153 Ga. 208 | Ga. | 1922
1. “ If one with notice sell to one without notice, the latter is protected.” Civil Code (1910), § 4535. Accordingly, the court properly sustained the demurrer to that portion of the petition which alleged “ that defendant’s original predecessor, in claiming title to said land, entered with full knowledge that he had no title, that the title was in Davis Pruitt; and he also knew that his claim of title was fraudulent. The origin of defendant’s claim being in fraud, his title could never ripen into a perfect prescriptive title; and petitioners allege that this notice and knowledge of the fraudulent inception of defendant’s claim of title attached to and followed the same on down to defendant.” The allegations in regard to fraud are insufficient to charge any fraud, except notice on the part of defendant’s predecessor in title.
2. The facts set out in the petition in regard to the appointment of John Davis Pruitt as administrator of Davis Pruitt and the suits filed by him as administrator, to which special demurrers were interposed, are insufficient to prevent prescriptive title from ripening.
3. Ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense. Where, however, such defense is anticipated, it must be effectually avoided, or the complaint is bad. Latta v. Miller, 109 Ind. 302 (10 N. E. 100); Western Union Tel. Co. v. Yopst, 118 Ind. 248 (20 N. E. 222, 3 L. R. A. 224) ; Calvo v. Davies, 73 N. Y. 211 (29 Am. R. 130); 21 R. C. L. 492, § 55.
4. The petition must be taken most strongly against the pleader, on the decision of a demurrer. Krueger v. McDougald, 148 Ga. 429 (96 S. E. 867). Thus construed the petition shows that the plaintiffs and their predecessors in title have not been in possession of the land since the death of Davis Pruitt in 1857; nor does it allege any facts sufficient to prevent the ripening of prescriptive title. It also shows that the defendant and her predecessors in title have been in possession for an indefinite number of years, presumptively since 1857, or at least for a period sufficient for prescriptive title to ripen. It further shows that John .Davis Pruitt, as administrator of the estate of Davis Pruitt, filed suit for the land, and that such suit is either still pending or has resulted in favor of the defendant. In either event the suit would bar the present proceeding. No amendment having been offered to cure the defects pointed out, the court did not err in sustaining the demurrers and dismissing the petition.
■Judgment affirmed.