83 Ga. 325 | Ga. | 1889
Mrs. Lee brought complaint for land against Eastman. On the trial she offered the following evidence: The will of her father, Levi Harrell, dated June 10th, 1856, directing his executor, L. L. Harrell, to sell the property not" specifically disposed of, and make an equal division of the money among his children, of whom the plaintiff was one, and directing that the shares which his daughters received should be free from the disposition or liabilities of their husbands, being given to them for their use and benefit during their natural lives, and after their respective deaths to be divided among whatever children they might leave then surviving, their husbands to have the use of the property for the support of the families; and the executor of the will being appointed trustee for the testator’s daughters, with the direction that he control their property so far as to protect it from the debts, contracts or disposition of their present or future husbands. L. L. Harrell qualified as the executor December 4th, 1865. The plaintiff" also offered in evidence an order of the ordinary, dated March 10th,' 1866, allowing the executor to sell the real estate for the purpose of division among the heirs ; a deed dated December 4th, 1866, from Harrell, the executor, to himself, as trustee for the plaintiff, conveying the land in dispute to himself as trustee; a deed dated July 2d, 1870, from Harrell, trustee to the defendant.
The defendant introduced the following evidence: A deed dated March 16th, 1870, from the plaintiff", Mrs. Lee, and her husband, to the defendant, conveying the property in dispute; the petition of L. L. Harrell, trustee, to the chancellor, for leave to sell the land in dispute, and an order from the chancellor, dated at
The jury found for the defendant, and the plaintiff moved for a new trial on the grounds that the verdict was contrary to law and to the evidence, and because the court charged as follows: “ Possession, to be the foundation of a prescriptive title, must be in the right of the possessor and not of another; must not have
We do not agree with them in this view of the law. “ When the code declares that possession, to be the foundation of prescription, must not originate in fraud, we think the fraud meant is actual fraud, a moral fraud, a wrongful act, and not a legal fraud, which the law denominates a fraud regardless of the bona jides of the parties.” Ware v. Barlow, 81 Ga. 1, and authorities there cited. This is the settled doctrine of this court, and will not be disturbed.
Counsel for the plaintiff in error relied on the ease of Hunt v. Dunn, 74 Ga. 120. That case seems to be in direct conflict with the uniform rulings of this court. See the cases cited in Ware v. Barlow, supra. It does not cite these cases, nor overrule them, and we are disposed to follow the earlier cases, and those made since the decision in 74 Ga. If the doctrine announced in 74 Ga. be correct, there is no use.for the doctrine of prescription. The statement of facts in that ease shows that when Cross bought the land, he investigated the