Opinion
15933.
OCTOBER 14, 1947. REHEARING DENIED NOVEMBER 14, 1947.
Registration of land. Before Judge Brooke. Gordon Superior Court. May 23, 1946.
D. W. Mitchell, J. C. Mitchell, Walter H. Bolling, and J. G. B. Erwin, for plaintiffs.
Pittman Hodge, Paschall Chance, and H. L. Barnett, for defendants.
1. While a devise of land under a duly probated will is such color of title as will ripen into title by prescription after adverse possession in good faith for a period of seven years, yet the divesting of the testator of title by warranty deeds to the land devised, subsequently to the execution of the will, constitutes a revocation of the devise, and possession by the devisee with knowledge of the deeds is not in that degree of good faith which will enable the adverse possession to ripen into prescriptive title.
2. Where such devisee is also an heir of the deceased grantee in the deeds, possession of the devisee is that of the other heirs standing in the same relationship as cotenants, and in the absence of actual ouster, exclusive possession after demand or express notice of the adverse possession, the devisee does not acquire prescriptive title as against her cotenants by such possession.
( a) If the unexplained, exclusive possession of the devisee and heir is tested by the rule that the law presumes that she acted in her own best interest, she must be held to have intended that her possession be that of an heir, in which capacity she had an indisputable one-fifth interest, rather than that of a devisee, in which capacity she had no title whatever. The quiet possession of such cotenant, where she received the rents and profits, made repairs, and paid taxes, in the absence of any notorious act showing actual ouster or giving notice of the adverse claim, authorizes the finding that she held as a cotenant and not adversely to the other heirs.
3. The evidence did not demand a finding that there had been actual ouster, exclusive possession after demand, or express notice of adverse possession.
No. 15933. OCTOBER 14, 1947. REHEARING DENIED NOVEMBER 14, 1947.
J. G. B. Erwin and O. C. Langford, as administrators of the estate of Julia C. Hill, brought a proceeding in the Superior Court of Gordon County to register title to a described tract of land. The petitioners claimed title thereto under and by virtue of a bequest in the will of J. W. Hill, which was executed in 1913 and probated in common form immediately after his death in 1931. The records of Gordon County showed a warranty deed from J. W. Hill, dated January 1, 1921, and recorded March 26, 1926, conveying part of the same tract of land to his wife, Harriett Ann Hill, and a deed with the same grantor and grantee, dated October 12, 1921, recorded March 19, 1926. The will had bequeathed to the wife a life estate in the land with remainder to Julia C. Hill, a niece. Mrs. Harriett Ann Hill died intestate in 1932, and there has been no administration on her estate. The petitioners gave notice as required by law of the present proceeding to all the heirs of Harriett Ann Hill, who were nieces and nephews, and they filed objections. Harriett Ann Hill had five brothers and sisters, all of whom had died leaving children, the objectors being children of four and Julia C. Hill being the child of another.
The petitioners contended that, although the deeds had been recorded, they had not been delivered, and, hence, no title passed thereunder. The evidence showed that the grantor carried the deeds to the clerk and received them back from the clerk after they had been recorded. After the death of Julia C. Hill her administrators found the deeds in her lock box at the bank. It was stipulated that J. W. Hill returned the land for taxes through 1930, and thereafter returned no land for taxes; that Harriett Ann Hill returned the land in question for taxes for the years 1931 and 1932; and that Julia C. Hill returned it for taxes from 1932 until her death in 1944, and her representatives have returned it for taxes since that time. J. W. Hill continued to manage and control the land until his death, and Julia C. Hill has managed and controlled it since that time. After the death of J. W. Hill, his wife Harriett and his niece Julia continued to live together until the wife's death about six months later. The evidence showed without contradiction that since 1932 Julia C. Hill, until her death in 1944, and her administrators since that time, have been in the exclusive possession, receiving all the rents and profits, making repairs, and paying all taxes. During the pendency of this suit, by consent of all the parties the land was sold under an order of court by the administrators, and it was agreed that the respective interests in the proceeds from the land be fixed by a judgment of the court instead of under the original prayer for registration of title. The petitioners contended that, even though the deeds divested J. W. Hill of title, thereby preventing title from passing under the will to Julia C. Hill, yet Julia C. Hill took possession claiming a good title under the will; and that, having held possession under such claim for more than seven years, she acquired good title by prescription. They denied that she took possession as a cotenant of the objectors, but contend that, even if it be held that she was a cotenant of the objectors, there was evidence of ouster and notice, which demanded a finding that she had held adversely to the objectors for more than seven years and thus acquired a prescriptive title. The objectors, on the other hand, contended that, since that, since the full title to the land passed under the deed from the testator to their aunt, Harriett Ann Hill, upon the death of Mrs. Hill they, as heirs, became cotenants with Julia C. Hill and other heirs, and, hence, the possession of Julia C. Hill was that of a cotenant and was not adverse to the objectors; and that, irrespective of how long the possession was thus held, no prescriptive title could be acquired thereby; and that the funds in question should be divided per stripes, giving one-fifth to the petitioners and four-fifths to the objectors.
The examiner found that the deeds in question had been duly delivered to the grantee; that Julia C. Hill was a cotenant of the objectors; and that she had not obtained title under the will by prescription or otherwise; and that the proceeds from the sale of the land should be divided one-fifth to the petitioners and four-fifths to the objectors. Exceptions were filed by the petitioners to the examiner's findings. These were overruled, the findings of the examiner were made the judgment of the court, and the petitioners excepted.
1. A devise of land under a duly probated will is such color of title as will ripen into title by prescription after adverse possession in good faith for a period of seven years. Quarterman v. Perry, 190 Ga. 275 (2) ( 9 S.E.2d 61); Blalock v. Webb, 190 Ga. 769 ( 10 S.E.2d 747); Fraser v. Dolvin, 199 Ga. 638 ( 34 S.E.2d 875); Hardin v. Council, 200 Ga. 822 ( 38 S.E.2d 549). Knowledge of the claimant devisee that her testator had subsequently to the execution of the will divested himself of title to the land by warranty deeds to another would render the possession by such devisee lacking in the element of good faith required by law as a condition to the acquirement of title by prescription. The deeds constituted a revocation of the devise in the will. Johnson v. Hayes, 139 Ga. 218 ( 77 S.E. 73).
2. The devisee, Julia C. Hill, was also a niece and heir of Harriett Ann Hill, the deceased grantee in the warranty deeds from the testator, J. W. Hill. There were other nieces and nephews of the deceased grantee who stood in the same relation as Julia C. Hill; and when the case is considered from the standpoint of the deeds, they were tenants in common, and the possession by Julia C. Hill was the possession of the other cotenants. Code, § 85-1003. She could not hold adverse possession to the other cotenants until actual ouster or exclusive possession after demand or express notice of adverse possession. § 85-1005. The burden was upon Julia C. Hill, a cotenant, as a condition precedent to asserting prescriptive title, to prove that she had met one of the statutory conditions precedent to adverse possession against the other cotenants. Harris v. Mandeville, 195 Ga. 251 ( 24 S.E.2d 23). There is no presumption of law that Julia C. Hill, as devisee, who had the right of possession as a cotenant, ever shifted to some other instrument as a basis of possession. The burden was upon her to prove that she made such a shift from possession as a cotenant. Roughton v. Roughton, 178 Ga. 367 ( 173 S.E. 673). Whether or not the evidence in this record would have authorized a finding that she had shifted from possession as a cotenant to possession under the will, it did not demand such a finding, and, accordingly, the judgment against her was authorized by the evidence. The probate of the will, which, in addition to the land here involved, disposed of various other properties belonging to the testator, did not amount to an assertion of a claim of title thereunder by the devisee. Mitchell v. Gunter, 170 Ga. 135 ( 152 S.E. 466). There is nothing in Stephens v. Walker, 193 Ga. 330 ( 18 S.E.2d 537), contrary to what we have just ruled. There the possessor never expressly or impliedly recognized the relationship of cotenant, but claimed title and held possession under a deed to him as the sole grantee. and it was held that the statutory rule that there could be no adverse possession against a cotenant until actual ouster or exclusive possession after demand or express notice of adverse possession did not apply. If the rule invoked by counsel for the plaintiffs in error to the effect that a person is presumed to act in his own best interest is applied, it will require the conclusion that Julia C. Hill claimed under her ancestor as an heir, since such a claim is supported by her indisputable title to one-fifth interest, whereas her claim under the will would not be supported by any title whatever, and if adverse possession which met every requirement of the law for a period of seven years had been held by her under the will, then for the first time she would have acquired title. This rule, however, would not authorize willful trespassing with knowledge that no right existed to result in vesting title in such a trespasser. If the devisee knew of the existence of the deeds, thereby knowing that nothing passed under the will, no period of adverse possession by her would have enabled her to acquire prescriptive title.
3. We can not sustain the contention of the plaintiffs in error that the evidence in this record demanded a finding that there had been an actual ouster. Whether or not the possession and retention of the rents and profits, making repairs, and paying taxes and selling timber would have authorized a finding of actual ouster, it did not under the facts and circumstances of this case demand such a finding. In Hardin v. Council, supra, this court, quoted with approval from Morgan v. Mitchell, 104 Ga. 596, 598 ( 30 S.E. 792), as follows: "The entry and possession of one joint tenant or tenant in common being, prima facie, in support of his cotenant's title, to constitute an adverse possession there must be some notorious and unequivocal act indicating an intention to hold adversely, or an actual disseisin or ouster. The silent and peaceable possession of one tenant, with no act which can amount to an ouster of his cotenants, is not adverse; so either actual notice of the adverse claim must be brought home to the latter, or there must have been unequivocal acts, open and public, making the possession so visible, hostile, exclusive, and notorious that notice may fairly be presumed, and the statute of limitations will begin to run only from the time of such notice. . . Exclusive possession, therefore, by a cotenant alone will be presumed not an adverse holding, but simply one in support of the common title."
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.