165 Ga. 309 | Ga. | 1927
(After stating the foregoing facts.) In determining the correctness of the ruling of the trial court it becomes necessary to consider the evidence in the case. The uncontradicted
The second contention of the plaintiff is that the defendant was bound by the recital in his muniment of title, and is thereby estopped to deny the title of the plaintiff. This contention is unsound, for at least two reasons: First, as already stated, under the terms of the recital, as the deed from the Investment Company to Herrin conveying the lot in dispute was not recorded (and thus one seeking to ascertain what lots had been sold could not discover from the record that the lot in dispute was included within the terms of the provision), the recital was not even constructive notice to the defendant of the plaintiff’s title. Second, the motion of the defendant for a directed verdict was based upon his proof of adverse possession of the lot in question for more than seven years under color of title. The authorities cited by the plaintiff in error do establish the proposition that parties to a deed and those claiming under them are bound by recitals contained therein and are estopped to deny them. This principle, however, has no application where the statute is pleaded and possession under color of title is relied on. In such an instance, from the nature of the case, the defendant does not claim under a chain of title, for under the law of prescription he does not rely upon his title, but upon his possession. Indeed, it may be said that a defendant who claims land by virtue of seven years adverse possession- thereof under evidence of title has no muniment other than his color of title.
Applying the foregoing rulings to the evidence in this case, a verdict for the defendant was demanded, and the court did not err in directing the jury to return a verdict in his favor. It is unnecessary to discuss the validity of the title acquired by E. C.