21 Ga. 454 | Ga. | 1857
By the Court.
delivering the opinion.
The Court below overruled the demurrer. The question is, were any of the grounds of the demurrer good?
The main ground of the demurrer was that relying on the statute of limitations. Was this a good ground ?
The statute of limitations does not run in favor of one whose possession or claim is not adverse to that of the true owner. One whose possession is accompanied by the knowledge, and the admission that the title is in another; and also
And such a possession was that of Martin.
The bill says, that he first sold the negroes, or otherwise converted them to his own use; that afterwards he was sued for them by Robert Cunningham, the administrator of Jame» Cunningham, that Martin recognizing and admitting that the title to the negroes was in the estate of James Cunningham, and that his heirs and distributees were entitled to the negroes, and that Robert Cunningham, the administrator of James Cunningham, would recover them, made this proposition to the said Robert, viz: That the said Robert should dismiss his suit on being paid a sum of money equal to his. interest, as a distributee, in the negroes, and on receiving the promise of him, Martin, (a promise then given), that’he, Martin, would buy out the interest of all the other distributees in the negroes — and thus save him, Robert, from any loss for the maladministration.
Robert accepted this proposition, received the money, and dismissed the suit, and Martin held on to the negroes, or to what he had got in their place, if he had parted with them.
Now Martin holding the negroes, (or what represented them), under these circumstances, held them, expressly admitting and recognizing that the title to them was in the“ estate of James Cunningham;” and expressly promising on valuable consideration, to buy out that title from the heirs. Such a possession in him was not adverse to the title of “the estate” of James Cunningham, that is, to the title of the heirs of James Cunningham, whose title it is that the administrator asserts in the present suit. It can no more be said that such a possession is adverse to such a title, than it can be said, that the possession of the vendee of land, holding under the vendor’s bond for titles to be made on payment of the purchase money, is adverse to the title of the vendor. And if the possession was not adverse as to the heirs, it was not
The possession of Martin not being adverse, the statute of limitations did not run in his favor.
Nor could the statute begin to run in its favor, as long as the character of it remained unchanged. Before the statute could begin to run in its favor, it had to become adverse— adverse to the title of the heirs or of the administrator of James Cunningham.
Is it not to be presumed, however, from the lapse of time,, that the possession did, some how, become adverse ?
More than twenty years had elapsed, from the time when Martin’s possession under the settlement began, to the time when the suit was commenced. Possession for such a length of time as twenty years, is, of itself, a fact from which a strong presumption arises, that the possession is adverse to all the world ; Best on Pres. Law Lib., 87. But the presumption is not a conclusive one. It maybe rebutted in various ways. The question, therefore, whether it is to prevail or not, is a question for ti e jury on the trial, not for the Court on a demurrer.
In this case, the bill says what is equivalent to saying, that neither the complainant, nor the heirs of James Cunningham, knew of the title which the bill seeks to assert, until within less than four years of the commencement of the suit This, if true, rebuts the presumption.
But, in this case, knowledge or notice of such an intention in Martin, could not come to the heirs until knowledge of their title itself, against Martin, under the settlement, had come to them. And knowledge of that title did not come to.
And this suit, it must be borne in mind, is one that, in all likelihood, is for the benefit of none but the heirs. Indeed, I doubt extremely, myself, whether they ought not to be the parties suing ? — whether the title to the negroes was not completely vested in them on the termination of Robert Cunningham’s usufructuary term; whether, therefore, any administrator of James Cunningham can have any interest at all in them ? But the question was not considered as raised by the demurrer, for it was not discussed; and, therefore, I pass it over.
The conclusion, then, is that there is not enough apparent on the face of the bill, to require of a Court a conclusive presumption, that the possession of Martin, or his representatives, became adverse, at some point of time that was more than four years before the commencement of the suit; and, therefore, that there is not enough on the face of the bill to sustain the ground of the demurrer that consists in a reliance on the statute of limitations.
Whatever is true of this ground of the demurrer, is, manifestly, still more true of the ground that relies on the law of stale demand.
The next most important ground of the demurrer, is, that Lawson was a resident of Burke County, and the suit against him was brought in Bibb County. But the other defendant to the bill, Robert Cunningham’s administrator, is a resident of Bibb County; and relief is prayed against him.
That the bill is not multifarious, and that the complainant may, in equity, resort to both Robert Cunningham’s administrator, and to Martin, (or his legal representative), is deci
Upon the whole, therefore, we think that the Court was right in overruling the demurrer.
Judgment affirmed.
