Opinion
27306.
ARGUED JULY 10, 1972.
DECIDED SEPTEMBER 7, 1972.
Partition. Wilcox Superior Court. Before Judge McMurray.
Benjamin Zeesman, for appellant.
McDonald, Mills Chasteen, Ben B. Mills, Jr., D. E. Turk, for appellees.
Under applicable law the evidence did not demand a determination that the defendant had acquired a title to land by prescription or otherwise to the exclusion of the claims of the plaintiffs and others similarly situated as tenants in common with the defendant. The enumerations of error are without merit.
ARGUED JULY 10, 1972 — DECIDED SEPTEMBER 7, 1972.
Herbert McBurrows and other descendants of Jennie McBurrows (one is her daughter and the others are grand-children) in their behalf and for others similarly situated, sought by a complaint in equity against another grandchild, Henry Fuller, a determination of their status as tenants in common with the defendant to land devised by Jennie McBurrows to her nine children, and, in view of the minute fractional interests of the various parties, a sale of the land and division of the proceeds.
Tracts totaling approximately 125 acres of land in Wilcox County are involved. Jennie McBurrows died in July, 1935, and her will, including a codicil, was duly probated. Under the terms of the will she gave two of her daughters 24 acres of the land, and the remaining 101 acres to her seven other children, four sons and three daughters. In August, 1936, her executor deeded the 24 acres to the two daughters named in the will and the remaining 101 acres to six other children then living, and ten named heirs of a deceased daughter, Eliza Fuller. The defendant, Henry Fuller, is one of the heirs of Eliza Fuller.
Fuller's claim to the land, except his interest as an heir of Eliza Fuller, is based on the following records:
A tax deed dated January 7, 1937, for 50 acres, by the Sheriff of Wilcox County for Jennie McBurrows, based on a tax fi. fa. for the year 1935, to Wilcox County; a quitclaim deed by Wilcox County dated June 5, 1945, to Jim McBurrows and Henry Fuller, redeeming the 50 acres; and a warranty deed dated January 4, 1950, by Jim McBurrows conveying his interest to Henry Fuller.
A tax deed dated January 4, 1938, for 75 acres, by the Sheriff of Wilcox County for Jennie McBurrows, based on a tax fi. fa. for the year 1936, to Wilcox County; a quitclaim deed by Wilcox County dated December 11, 1939, to Martha Majors and Lizzie Kellum (daughters of Jennie McBurrows), redeeming the 75 acres; another tax deed by the Sheriff of Wilcox County for Martha Majors dated November 4, 1940, based on a tax fi. fa. for the year 1937, and also for 1938, to Wilcox County; a quitclaim deed dated June 2, 1942, from Wilcox County to Martha Majors, redeeming the 75 acres; a deed by Henry Fuller, as administrator of the estate of Martha Majors, dated December 4, 1945, to C. D. Crummey; and a warranty deed of the same date from Crummey to Henry Fuller.
It further appears that Henry Fuller rented the 75-acre tract for a number of years to Herbert McBurrows, that Henry Fuller commenced an eviction proceeding against Herbert McBurrows in 1959 for failure to pay rent, and that Henry Fuller obtained a writ of possession in 1961.
The present suit commenced in 1962. At a hearing conducted in 1967 the trial judge heard two witnesses, Herbert McBurrows and Henry Fuller, and received documentary evidence substantiating the conveyances described above. His order and decree dated March 27, 1972, from which the defendant appeals, includes the following determinations and provisions:
The tax deed for 50 acres dated January 7, 1937, is null and void because the tax fi. fa. was issued against Jennie McBurrows on December 20, 1935, whereas she died in July, 1935.
The tax deed for 75 acres dated January 4, 1938, is null and void because the tax fi. fa. was also issued after her death, and for the further reason that title vested in her executor as of January 1, 1936.
The tax redemption deed for 75 acres dated December 11, 1939, had the sole effect of placing the title back in the defendant in fi. fa., Jennie McBurrows, and Martha Majors and Lizzie Kellam acquired no additional interest thereby.
The administrator's deed dated December 4, 1945, conveyed only the one-half undivided interest of Martha Majors at her death in 24 acres as a devisee under the will of Jennie McBurrows, and likewise the conveyance from Crummey to Fuller conveyed only this interest.
The tax redemption deed for 50 acres dated June 5, 1945, had the sole effect of placing title back in the defendant in fi. fa., Jennie McBurrows.
The deed to a one-half undivided interest in 50 acres dated January 4, 1950, only conveyed the one-seventh undivided interest which Jim McBurrows acquired under his mother's will.
Based on the above the trial judge concluded that Henry Fuller owns one-half undivided interest in the 24-acre tract described in the will of Jennie McBurrows, one-seventh undivided interest in the 50-acre tract purchased from Jim McBurrows, and one-seventieth undivided interest in the remaining 51 acres.
Additionally, the trial judge determined there had been no acquisition by adverse possession. His order further enjoins the defendant from excluding or attempting to exclude the plaintiffs or other lawful claimants from possession, and provides for a commissioner to sell the land and divide the proceeds according to the interest of the claimants.
1. The first enumeration merely asserts error on the judgment. The second asserts that the plaintiffs failed to carry the burden of proof. These assertions appear to be argued in the brief on the basis that the evidence demands a determination that the defendant had acquired title by prescription, by reason of more than seven years adverse possession under written color of title. In support of this argument counsel relies on the provisions for prescription by adverse possession under Code § 85-407 and decisions exemplified by Smith v. Jefferson County, 201 Ga. 674 ( 40 S.E.2d 773), that a tax deed, even though void, will constitute color of title to support prescription by adverse possession.
But where tenants in common are involved, as here appears, Code § 85-1005 provides: "There may be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession; in any of which events the cotenant may sue at law for his possession." One claiming prescriptive title against a cotenant must not only show the usual elements of prescription, e.g., as provided in Code § 85-407, but must also in addition show that his claim of title by prescription meets at least one of the conditions stated in Code § 85-1005. Hardin v. Council, 200 Ga. 822, 829 ( 38 S.E.2d 549). This case further recognizes the general proposition that tenants in common occupy a fiduciary relationship to each other with respect to their interests in common property and the common title under which they hold, and "that it would be inequitable to permit one of them, without the consent of the others, to buy an outstanding adversary's claim to the common estate and assert it for his exclusive benefit, to the injury or prejudice of his cotenants; and if one cotenant does actually acquire such a claim, he is, unless the contrary appears, to be regarded as holding it in trust for the benefit of his cotenants in proportion to their respective interests." Hardin, supra, p. 830. Silent and peaceable possession of a tenant in common, with no act which can amount to an ouster of his cotenants, is not enough. There must be actual notice of the adverse claim or unequivocal acts making the possession visible, hostile, exclusive and notorious, otherwise exclusive possession will be presumed to be in support of the common title. Morgan v. Mitchell, 104 Ga. 596, 598 ( 30 S.E. 792). Also, see Roumillot v. Gardner, 113 Ga. 60 ( 38 S.E. 362, 53 LRA 729). Redemption of property by a cotenant inures to the benefit of all cotenants. Andrews v. Walden, 208 Ga. 340, 345 ( 66 S.E.2d 801); Miles v. Blanton, 211 Ga. 754 ( 88 S.E.2d 273).
Even if the writ of possession in 1961 were treated as a total ouster to commence a period of adverse possession, the time thereafter before the present complaint was instituted is insufficient, and, in our opinion, no other basis appears to demand the conclusion, as a matter of law, that the defendant had acquired title by prescription or otherwise to support reversal of the action of the trial judge, sitting as judge and jury. The first two enumerations, as argued and insisted upon, are without merit.
2. The third enumeration, to the effect that the evidence had become stale in the recollection of the trial judge because of the delay of nearly five years between the hearing and order, is argued only on the basis that the assertion "is good on its face and logic and we do not find a decision in point." This enumeration is without merit.
3. The remaining enumerations, that the trial judge erred in overruling demurrers, and in effect overruling a plea in abatement and a motion to dismiss on the ground of laches, plus the assertion generally that the trial judge erred in not ruling in favor of the defendant and erred in each of his final rulings, are supported in the brief by reference to Code § 37-119 stating the equitable principle of laches. These enumerations are without merit.
Judgment affirmed. All the Justices concur.