186 Ga. 838 | Ga. | 1938
To an application to register title to land objections were filed. The examiner’s report was in favor of the applicant, and to this report exceptions were filed by the objectors. The court dismissed these exceptions on motion, and entered a final decree in favor of the applicant. The objectors sued out a writ of error and brought the case to this court. More fully stated, the material facts were as follows: In January, 1936, John R. L. Smith filed an application to register an alleged title to describe land under the land registration law. Code, title 60; Ga. L. 1917, p. 108. The application included a claim of prescriptive title under color. Objections were filed by "Catherine Reynolds Plan and C. A. Reynolds, adult children of Jno. H. Reynolds, each of whom have attained majority, and neither of whom are under disability, and Jas. A. Reynolds, minor child of Jno. H. Reynolds, his father and next friend, and Jno. H. Reynolds trustee for said children.” That is to say, objections were filed by two adult children and one minor child of John H. Reynolds, and by the same John H. Reynolds as '"trustee for said children.” The claim of the objectors was based on an alleged grant in a deed executed in the year 1899 to a named person for life, "and after
The sheriff’s deed conveying the land to the applicant, as referred to in the last preceding finding, was executed in April, 1927, so that the adverse possession of Mrs. Ada Reynolds was found by the examiner to have continued until that date. According to other findings of fact, John R. L. Smith purchased the land from A. T. Small, subject to the bond for title executed by Small to Mrs. Reynolds, and after obtaining a judgment against her for the purchase-money, and after executing and having recorded a quitclaim deed for the purpose of levy and sale, caused the land to. be sold as her property to satisfy the judgment for purchase-money. This will explain the reference, in the examiner’s finding number 10 above, to the sheriff’s deed, and will show that the applicant is holding directly under the deed executed by John H. Reynolds in March, 1915, and that the chain includes the eon
From the foregoing statement it will be seen that the examiner’s findings of fact numbered 7, 8, 9, and 10 must be treated as if no exceptions had been taken thereto, and as showing continuous adverse possession under color of title by two of the applicant’s predecessors in title for more than seven years in the aggregate. There is no evidence and no finding of fact that the possession of either of such predecessors originated in fraud, and no contention to that effect was made by the objectors either in this court or in the trial court. It is contended, however, that the applicant’s ■own possession originated in fraud, and this contention is the basis of the entire controversy in this court. Under the facts stated, the writ of error does not show any cause for a reversal. The objectors claim under the deed made in the year 1899 to their father "in trust for his heirs.” If the objectors acquired any right under the grant contained in this deed, such right or interest was purely equitable in nature, the legal title being in their father as trustee. Vinson v. Vinson, 33 Ga. 454; Heyward-Williams Co. v. McGall, 140 Ga. 502 (79 S. E. 133); Milner v. Gay, 145 Ga. 858 (90 S. E. 65); Hollis v. Lawton, 107 Ga. 102 (32 S. E. 846, 73 Am. St. R. 114); Lumpkin v. Patterson, 170 Ga. 94 (2) (152 S. E. 448). The person named as trustee took no interest for himself, but held the title only in trust "for his heirs.” Vinson v. Vinson, and Heyward-Williams Co. v. McGall, supra. The trust was executory, embracing the entire remainder estate as conveyed by the deed, and continued as to each beneficiary at least until his or her arrival at majority. Code, § 108-111; Turner v. Barber, 131 Ga. 444 (62 S. E. 587); Burton v. Patton, 162 Ga. 610 (2) (134 S. E. 603); Duncan v. Verner, 172 Ga. 553 (158 S. E. 322); Therefore prescription could run in favor of a third person holding adversely, so as to bar both the trustee and the beneficiaries. Wingfield v. Virgin, 51 Ga. 139; Brady v. Walters, 55 Ga. 25 (4); Schnell v. Toomer, 56 Ga. 168 (2); McLain v. Rabon, 142 Ga. 163 (3) (82 S. E. 544); Waits v. Boothe, 148 Ga. 376 (1, 4) (96 S. E. 863); Sparks v. Anderson, 150 Ga. 58 (2) (102 S. E. 423).- -If the trust became executed-successively as the beneficiaries arrived at their majority, then'the following principle would be applicable, provided - there was -the
“ Possession to be the foundation of a prescription must be in the right of the possessor, and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted, and peaceable, and be accompanied by a claim of right.” Code, § 85-402. “Adverse possession of lands, under written evidence of title, for seven years, shall give a like title by prescription; but if such written title is forged or fraudulent, and notice thereof is brought home to the claimant before or at the time of the commencement of his possession, no prescription shall be based thereon.” § 85-407. “Fraud which will prevent possession of property from being the foundation of prescription must be actual or positive fraud, not constructive or legal fraud.” § 85-414; Kelley v. Tucker, 175 Ga. 796 (166 S. E. 187); Tatum v. Wilson, 179 Ga. 688 (2) (177 S. E. 338). When a party claims adversely, it is not necessary for him to show that he went into possession bona fide, but the burden of showing fraud is upon the opposite party. Evans v. Baird, 44 Ga. 645 (2); Teel v. Griffin, 142 Ga. 245 (2) (82 S. E. 662). “An inchoate prescriptive title may be transferred by a possessor to a successor, so that the successive possessions may be tacked to make out 'the prescription.” Code, § 85-416. “Where one enters into possession of a part of a tract of -land under color of title which is duly recorded, and thereafter
Moreover, the evidence and the admissions in the record demanded a finding in favor of such prescription. “Where some of the findings of fact by an auditor are sufficient to support a judgment or decree in favor of one of the parties, and are not themselves subject to exceptions taken, a judgment founded thereon in favor of such party should not be disturbed by this court, notwithstanding other findings both of fact and of law may have been subject to exception.” Robinson v. Reese, 175 Ga. 574 (6) (165 S. E. 744); Barber v. Southern Service Corporation, 182 Ga. 124, 130 (185 S. E. 93). A fortiori, the result would be the same where no exceptions were taken. The same rule applies in the instant land-registration case. Code, § 60-304; Manion v.
We have thus far dealt with the case as if the exceptions were sufficient to raise an issue of fact as to whether the possession of the applicant himself originated in fraud, and as though a jury trial should have been had, except for the fact that prescription had already ripened in favor of a predecessor in title. We think it should be further said, however, that the evidence would not have warranted a finding that the applicant’s own possession originated in fraud. At the time he purchased the land the trust deed executed in 1899, under which the objectors claimed, had been so recorded as to omit the trust feature; in other words, it did not contain the words '“in trust.” Accordingly, the deed as it then appeared of record did not show any right or claim whatsoever in the objectors. Harris v. Smith, 16 Ga. 545; Reynolds v. Dolvin, 154 Ga. 496 (114 S. E. 879); McCoy v. Olive, 168 Ga. 492 (148 S. E. 327). John H. Reynolds testified that he informed the applicant a short time before the applicant purchased the property, that “it was entailed property,” that he had only a life-interest in it, and that it would go to the children of the witness at his death; also that the applicant would find this to be the truth if he would investigate. There was also evidence that a letter to the same effect had been written by the witness to the applicant, shortly after the alleged conversation. There was no evidence, however, that the original deed under which the objectors claim was exhibited to the applicant, nor was there any suggestion that it was different
After the present application for registration was filed, the objectors caused their deed to be recorded again, so as to include the words “in trust,” which, as they contended, had been omitted by mistake from the former record. The applicant contended that the deed had been altered by the insertion of these words before the last record; but regardless of this, there was nothing to show that the applicant had any notice of the quoted language before he purchased. Under the facts a jury would not have been authorized to find that the possession of the applicant originated in fraud. Brady v. Walters, 55 Ga. 25 (3); Kelley v. Tucker, supra.
In the foregoing opinion, we have endeavored to consider the case on its merits, overlooking for the most part alleged defects in the exceptions filed by the objectors. Nothing herein said, however, is intended to imply that any of the exceptions were in proper form.
Judgment affirmed.