175 Ga. 796 | Ga. | 1932
This was a suit for land, brought by W. B. Tucker against Thomas J. Kelley. The verdict was in favor of the plaintiff, and the ease is here on exceptions by the defendant to the overruling of his motion for a new trial. The plaintiff relied upon an alleged chain of title extending from the State of Georgia to himself, as shown in an abstract attached to the petition as an exhibit. The abstract was referred to in paragraph 6 of the petition. In his answer the defendant stated that paragraph 6 of the petition is “neither admitted or denied for the want of sufficient information.” The defendant further contended that he had been in possession of the land for more than seven years under color of title, and had acquired title by prescription. The defendant’s original motion for a new trial was amended by the addition of several' special grounds. We have carefully considered each of these grounds, and have concluded that two of them were well taken. The other special grounds are without merit, and need not be discussed.
The defendant assigned error upon the following charge of the court: “One might have actual knowledge of an outstanding claim of title to land that he holds, but if he honestly and in good faith and for a valuable consideration enters on the land, believing that he has good title although another claims it, then title would ripen in him; provided also that he honestly and in good faith believes that he has good title, and that belief is founded on reason and good sense; in other words that he acts as a man of ordinary intelligence.” This charge was excepted to upon the grounds, among others, that it placed upon the defendant the burden of proving that he exercised “reason and good sense” and acted as a man of “ordinary intelligence,” in order to show that his entry was bona fide and in good faith, whereas intelligence is not the test of good faith in a claim based on prescription, but the test is whether the defendant had knowledge that the title under which he claimed was forged or fraudulent.
The facts to be considered in passing upon this ground of the motion for a new trial were as follows: After the plaintiff had shown what he contended was a chain of title from the State to himself, referred to as the McKee title, the defendant sought to prove the defense of prescription. It appeared from the eyidence
Under the facts stated, the court erred in giving the instruction complained of. “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
Error was also assigned upon the following charge: “The defendant comes in and sets up that although the plaintiff may have a paper title, he has lost his title by virtue of the fact that the defendant has a title that has ripened against the plaintiff by prescription.” It was contended that this charge placed the defendant in the attitude of assuming that the plaintiff had title to the lands; whereas the defendant in his plea denied the claim of the plaintiff, and contested his right to recover on what he claimed as a paper title. The defendant in his answer did not admit that the plaintiff had paper title to the property, or that the plaintiff would be entitled to recover unless the defendant established his claim of prescription. It is elementary that the plaintiff must recover upon the strength of his own title, and not upon the weakness of the defendant’s title. The evidence does not show that a verdict for the plaintiff would have been demanded, if authorized, upon the paper title introduced. In the brief of evidence the conveyances are set forth with such brevity as not to disclose a continuous chain of title from the State to the plaintiff, as alleged in
The charge complained of was susceptible of the construction that the defendant conceded that the plaintiff should recover unless the defendant showed title by prescription, and an examination of the whole charge discloses that prescription was the only issue submitted. Under the pleadings and the evidence, the court erred in giving the excerpt complained of.
In view of the rulings stated above, we express no opinion as to whether the evidence was sufficient to authorize the verdict for the plaintiff. The court erred in refusing a new trial.
tJudgment reversed.