81 Ga. 1 | Ga. | 1888
Counsel for the' plaintiffs in error insisted on four propositions for reversal of the judgment of the court below in this case: (1) that the court erred in ruling that Barlow did not derive his title from Edward Ware; (2) that the court erred in holding that the executors of Edward Ware had power to sell the land in question, under the 8th item of the will, it not being in the lands enumerated therein; (3) that the court erred in holding that the deed made by the two executors, without the knowledge or concurrence of Terhune, the other executor, was good; and (4) that the court erred in holding that the defendant, Barlow,, had a good title by prescription. The view we take of this case renders it unnecessary to discuss any of these propositions, except the last.
Hndérthe facts as disclosed by the record, did Barlow, the defendant in error, have a title by prescription to this lot of land ? Counsel for the plaintiffs in error insist that he did not. They contend that the power oí attorney which the executors gave to Moore'recited the provisions of Edward Ware’s will; that it was the duty
In the case of Wright vs. Smith, 43 Ga. 291, McCay, J., in treating of this question, says : “ The question of adverse possession is one of intention, and turns upon the bonajides of the tenant. To charge him with fraud, so as to vitiate his possession, the facts must be such as to affect his conscience. They must be brought home to him. It is true that one who buys property with constructive notice of an outstanding claim is in some sense charged with fraud — implied fraud. He is bound to look to the record; he is bound to follow up any fact which should put a prudent man on the watch; and if he fail to do this, he is looked upon as guilty of neglect. But if we take this view of the notice referred to in the section of code under consideration, we should destroy the whole doctrine of prescription. If one who buys property looks to the record — follows up every fact which ought to put a prudent man on the watch — and only buys when he finds nothing wrong, then he gets a good title, and the statute of prescriptions is wholly useless. According to the argument, one can only set up a prescriptive title when he has had seven years’ possession under a legal title. The very object of the statute is to protect persons in possession under defective titles, and if it can only be used to protect one who has bought without notice, either actual or constructive, of the outstanding rights of third persons, then the statute is wholly worthless, since such a purchaser would be protected without it. To charge the person in possession with notice, even of a fraud in his deed, the facts must be such as to charge his conscience. He must be cognizant of the fraud, not by construction but by actual notice. ... No man can be fairly said to hold land adversely to another who, at the time he goes into
Applying these rules to the facts in this case, we find that Barlow purchased this land from the agent of the two executors; that the power of attorney recited that they were the executors of Edward Ware; that they had a right, under this will, to sell this land; that there was no intimation therein that there was another executor; that he paid $15,000 for forty acres of land; that he went immediately into possession of it, and held it from that time up to the commencement of this litigation, claiming it in good faith. If the title he thus acquired was not a good, legal title, it was a mistake of law on his part and on the part of the parties from whom he purchased. The evidence does not disclose a single fact to show that this purchase was made in bad faith, or that any act that Barlow did was wrongful or unfair. If he had looked at the will and had seen that three executors had been appointed, would any court .hold that it would have been a fraud on his part if he had
Counsel for the plaintiffs in error relied mainly on the case of Hunt et al. vs. Dunn et al., 74 Ga. 120. If the principle announced in that case is sound law (which I very much doubt), it is distinguishable from this case. The facts show, in that case, that the person under whom the defendant claimed bought the land with notice of
Judgment affirmed.