165 Ga. 200 | Ga. | 1927
Mrs. Lula Holliday brought her action against the Seaboard Air-Line Railway Company, to recover a one-ninth undivided interest in three described parcels of land, which were parts of a larger described tract of 14 acres. Both parties claimed under Mrs. McMillan, a common grantor. She owned the larger tract. On June 24, 1892, Mrs. McMillan conveyed, by deed recorded on July 1, 1892, to Mrs. Holliday a one-ninth undivided interest in the larger tract, to take effect upon the death of the grantor. On September 20, 1894, Mrs. McMillan conveyed to one Wyatt the tract of fourteen acres, by deed to secure a debt, recorded September 22, 1894. The debt not having been paid, Wyatt brought suit and obtained judgment against Mrs. McMillan on November 21, 1895. On December 21, 1895, Wyatt, by quitclaim deed recorded on December 28, 1895, conveyed to Janie H. McMillan, with other property, the fourteen-acre tract for the purpose of levy and sale under his judgment. Thereafter the execution issued on said judgment was levied upon property embracing the fourteen-acre tract and the premises in dispute. After due advertisement the property was sold by the sheriff on the first Tuesday in January, 1901, and bought in by Wyatt, and the sheriff conveyed it to him. By mesne conveyances from Wyatt to Burton and from Burton to the defendant, the latter claims title to the lands embracing the premises in dispute.
As both the plaintiff and the defendant claim title under Mrs. McMillan as a common grantor, and as the deed from the common grantor to Mrs. Holliday is prior in date to the deed from Mrs. McMillan to Wyatt, under whom the defendant claims by mesne conveyances, Mrs. Holliday obtained a title superior to that of the defendant. This is so for the reason that where the plaintiff and defendant claim title from a common propositus, and that of the plaintiff is prior in time, and is not invalid for any of the
But it is insisted by the defendant that the evidence shows that it has a good title by prescription to the premises in dispute. The defendant and those under whom it claims had been in continuous, uninterrupted, open, and exclusive possession of the premises in dispute, under a claim of right, from January 1, 1901, until August 18, 1925, when the present suit was brought. In reply to this contention the plaintiff asserts that she acquired title to these premises as remainderman under the deed from Mrs. McMillan to her, and that in consequence she could not assert her title and recover possession of this land until the death of Mrs. McMillan, which took place only a few months prior to the bringing of this suit. It is now well settled that adverse possession does not run against a remainderman while the life-tenant lives. The life-tenant, or those claiming under her, being entitled to the possession of the property, no suit can be maintained therefor by the remainderman, and the defendant has no .possession which could become adverse so as to ripen into a prescriptive title against the remainderman so long as the life-tenant lives. Bull v. Walker, 71 Ga. 195; Bagley v. Kennedy, 81 Ga. 721 (8 S. E. 742); Lamar v. Pearre, 82 Ga. 354 (9 S. E. 1043, 14 Am. St. R. 168); Fleming v. Hughes, 99 Ga. 444 (27 S. E. 791); Luquire v. Lee, 121 Ga. 624 (49 S. E. 834); Smith v. McWhorter, 123 Ga. 287 (51 S. E. 474, 107 Am. St. R. 85) ; Dixon v. Patterson, 135 Ga. 183 (69 S. E. 21); Price v. Gross, 148 Ga. 137 (96 S. E. 4).
The defendant, while admitting the correctness of the principle of law just stated, claims that it is not applicable, for the reason that the remainder estate acquired by Mrs. Holliday under the deed from Mrs. McMillan of June 24, 1892, became merged in a subsequent greater estate acquired by Mrs. Holliday under a subsequent deed made by Mrs. McMillan. On January 30, 1896, Mrs. McMillan conveyed by warranty deed to Mrs Holliday, Archer H. McMillan, Janie A. McMillan, Nannie E. McMillan, Eobert K. McMillan, and Bessie S. McMillan, with other property, said tract of fourteen acres. That deed recited that it was executed in consideration of the rights and equities of the grantees in the property thereby conveyed, and of ten dollars in hand paid. The
No merger in this case took place, for a number of reasons. When Mrs. McMillan conveyed to Mrs. Holliday a one-ninth un
It is next urged by counsel for the defendant that Mrs. Holliday is estopped from asserting her title to the premises in dispute. When Wyatt reduced his debt to judgment,’and had the execution issuing on his judgment levied upon the lands conveyed by Mrs. McMillan to him to secure his debt, Mrs. Holliday and the other grantees in the deed of January 30, 1896, interposed their claim to the fourteen-acre tract above referred to. On November 22, 1900, this claim was voluntarily dismissed by the claimants, and the tract so levied upon and claimed was sold by the sheriff on the first Tuesday in January, 1901. By reason of these facts the defendant insists that Mrs. Holliday is now estopped from asserting her title to the premises in dispute, the same constituting, as we have seen, a part of said fourteen-acre tract •so levied upon and claimed. Our claim laws are cumulative, per
It is next insisted by counsel for the defendant that the court erred in directing a verdict for the plaintiff, under the evidence bearing upon the subject of the estoppel pleaded by the
Judgment affirmed.