Opinion
17372.
MARCH 12, 1951.
REHEARING DENIED MARCH 26, 1951.
Complaint for land. Before Judge Edmondson. Dawson Superior Court. November 4, 1950.
Wheeler, Robinson Thurmond, for plaintiff.
E. C. Brannon and Kenyon, Kenyon Gunter, for defendants.
1. There was no error in the excerpts from the charge complained of.
2. The evidence authorized the verdict, and the trial court did not err in overruling the petitioner's amended motion for a new trial.
No. 17372. MARCH 12, 1951. REHEARING DENIED MARCH 26, 1951.
W. R. Tucker filed in Dawson Superior Court, against Hayes Long, a resident of Dawson County, Willingham Harrison, a resident of Forsyth County, and R. T. Hurt Sr., a resident of Crisp County, a petition seeking to enjoin the cutting of timber on five acres of land in the southeast corner of land lot number 587 in the Fourth District and First Section of Dawson County. The petitioner and the principal defendant Hurt are coterminous owners of tracts of land that lie in one body. Each claims title to the land in dispute, which is situated between the petitioner's land on the east, and the defendant's land on the west. The suit originated when Hurt sold timber on the land described in his deed to Harrison, and the latter employed Long to cut the same. The ownership of title is the controlling question.
The petitioner and the defendant claim title to the five acres under separate chains of title, each of which originated from a common source, to wit, N. L. Perry. On May 22, 1880, Perry executed a warranty deed, which was not recorded until December 22, 1914, conveying the five acres in dispute to B. H. Hulsey. On December 2, 1913, Hulsey conveyed the five acres, together with other adjoining lands to A. L. Roper; and in April, 1942, the heirs of Roper conveyed this property to the petitioner. On November 13, 1903, Perry executed a junior warranty deed conveying, among others, land lot 587, which included the five acres in dispute, to M. J. Biddy. In 1914 Biddy conveyed the land last mentioned to the defendant.
Neither the petitioner, nor the defendant nor the predecessors of either are shown to have ever been in actual possession of the five-acre tract, and both parties are relegated to their paper title and constructive possession.
On the trial the evidence as to possession was to the following effect: B. H. Hulsey, one of the petitioner's predecessors in title, and members of his family, lived on part of the land described in the petitioner's deeds, from 1875 until after 1895. The Roper family, and later their tenants, lived on the above property from 1913 until it was sold to the petitioner in 1942, during all of which period people were living on a part of the property described in the defendant's deed. After the petitioner bought the property from the Roper heirs, a tenant remained thereon until 1945. The petitioner has not had any tenants living continuously on the property since the spring of 1945; but immediately thereafter he allowed a named person to keep stock in a barn for about 8 to 12 months. There were no houses on the property when the defendant bought from Biddy in September, 1914, but there had been a house on the land that Perry lived in. The defendant built a house in 1915, but not on the five acres. Thereafter his house was continuously occupied by tenants until about 1942. In 1941 he sold timber from a portion of the land described in his deed. He did not have any tenants on the property after 1942.
The jury returned a verdict for the defendant. The petitioner's amended motion for a new trial was overruled, and the case comes to this court for review upon his exceptions to that judgment.
1. In the first special ground, exception is taken to the charge that prescription shall not run in cases of fraud, the contention being that there was no evidence as to fraud. Each party was claiming by prescription. There was evidence for the petitioner that, during the period his predecessors in title were in possession of a portion of the land described in their deeds, there was never anyone that made any claim to the five acres in dispute; and the defendant testified that, at the time he purchased his land, he had no notice that anybody was claiming the five-acre tract which had been conveyed to the petitioner's predecessors in title. In such circumstances, whether the defendant took possession of his land in good faith was a question for the jury, and the trial court did not err in instructing them that prescription would not run in cases of fraud. See Jackson v. Sanders, 199 Ga. 222, 230 (9) ( 33 S.E.2d 711, 159 A.L.R. 638).
In the second special ground, exception is taken to the charge that possession under a deed for seven years would ripen into good title; the contention being that the court should not have stated that this rule would be applicable in the event either the petitioner, or the defendant, or their predecessors in title were so in possession of the land. Both the petitioner and the defendant were claiming that they had been in possession of the land under a deed for seven years; and under the evidence the trial court did not err in making the rule in reference to seven years' possession applicable to both of them.
2. In considering the general grounds of the motion for a new trial, it should be borne in mind that a senior unrecorded deed loses its priority over a junior recorded deed for value from the same vendor, taken without knowledge or notice of the existence of the senior deed (Code, § 29-401; Terry v. Ellis, 189 Ga. 698 (4), 7 S.E.2d 282); and, under the ruling in the first division of this opinion, whether the defendant purchased without notice of the senior deed in the petitioner's chain of title was a question for the jury.
The next question for consideration is whether either of the litigants or their predecessors acquired title by prescription. The deed in the petitioner's chain of title from the common grantor was not recorded until December 22, 1914. Ordinarily actual possession under a recorded deed of a portion of several tracts of land which are all contiguous and lie in one body will extend by construction so as to include the entire premises conveyed. Code, §§ 85-404, 85-405. But where, as here, such possession is under an unrecorded deed, constructive possession will not extend beyond the tract or lot on which actual possession is maintained; and ordinarily it will not extend to the boundaries of this parcel unless actual possession has been maintained of a portion of the land in dispute. Campbell v. Gregory, 200 Ga. 684 ( 38 S.E.2d 295). Under the facts in the case at bar, the constructive possession of the petitioner's predecessor in title could not have begun prior to December 22, 1914.
The evidence shows that from December, 1914, the date the above deed was recorded, until 1942, the petitioner's predecessor in title, and the defendant, were in possession of a portion of the land described in their respective deeds, and that the petitioner's predecessor in title and the defendant were coterminous owners. In such circumstances, each was in constructive possession of the five-acre tract, and no prescriptive title could ripen in favor of the petitioner's predecessor in title. Code, § 85-404, supra.
Counsel for the petitioner finally insist that the defendant's possession ended in 1942, and that the evidence demanded a finding that the petitioner perfected a prescriptive title by seven years' possession after that and before he filed suit in March, 1950. This contention is not supported by the evidence, which shows that the petitioner did not have any tenants living continuously on the property after the spring of 1945. There was testimony that, immediately following that spring, the petitioner permitted a named person to keep stock in the barn on the premises for from 8 to 12 months. However, no possession by the petitioner was shown after the spring of 1946, and therefore no prescriptive title could have ripened in him after the defendant's possession ended in 1942.
In the light of the foregoing, the evidence was insufficient to demand a finding that a prescriptive title had ripened in either the petitioner or the defendant. The evidence, though conflicting, was sufficient to support the verdict for the defendant, and the trial court did not err in overruling the petitioner's motion for a new trial.
Judgment affirmed. All the Justices concur.