Opinion
17566.
ARGUED SEPTEMBER 12, 1951.
DECIDED OCTOBER 10, 1951. REHEARING DENIED NOVEMBER 16, 1951.
Complaint for land. Before Judge Andrews. Fulton Superior Court. June 15, 1951.
J. V. Poole, for plaintiff.
Mitchell Mitchell, for defendant.
1. Where, by agreement of the heirs of a decedent, an award is made by commissioners and approved by a decree of the superior court, and under the award a lot of land is awarded to an assignee of an heir, upon the condition that title was to vest in the assignee upon the payment of a certain sum of money, representing the debt of the assignor-heir to the estate, it will be presumed after a lapse of eighty years that the debt was paid.
2. The evidence not authorizing a verdict for the plaintiff, but demanding a verdict in favor of the defendant on her cross-bill, it was not error for the court to direct a verdict in favor of the defendant.
No. 17566. ARGUED SEPTEMBER 12, 1951 — DECIDED OCTOBER 10, 1951 — REHEARING DENIED NOVEMBER 16, 1951.
On April 3, 1950, J. C. Bell filed his petition against Mrs. Ruby Cone, as executrix of the will of Charles H. Cone, in which he prayed for a decree declaring that the plaintiff had the title and right of possession of a one-third interest in land lot 250 in the 17th district of Fulton County, and that the defendant be restrained from trespassing on the property or interfering with his possession. In her answer the defendant denied that the plaintiff had any title, right, or interest in said land. By way of cross-petition, she asserted that Charles H. Cone, her testator, had title to and was in possession of the land at his death, and that the plaintiff had no interest in the land lot or the tract of 85 acres within said lot. The prayers of the defendant were that title to the 85-acre tract described in paragraph 5 of the petition be decreed to be in her, that a writ of possession issue, and that the plaintiff be enjoined from trespassing on the tract.
On the trial of the case, after the introduction of evidence by both parties, the court directed a verdict in favor of the defendant. The plaintiff's motion for a new trial as amended was overruled, and exceptions to the order denying a new trial bring the case here for review.
On the trial, the plaintiff introduced in evidence the following muniments of title to land lot 250 in the 17th district of Fulton County: (1) grant from the State of Georgia to John W. Smith, dated October 23, 1830; (2) deed from John W. Smith and Isham Smith to James D. Shanks, dated January 12, 1831; (3) deed from R. E. Black et al., legal heirs of James D. Shanks, conveying "all their interest" in said land lot to the plaintiff, dated April 12, 1947. He also introduced in evidence a genealogical chart of the legal heirs of James D. Shanks. The chart shows that the children of James D. Shanks were James Shanks, Emily Shanks Kornegay, Orville Shanks, and Maria Shanks Branch; and that the grantors in the plaintiff's deed were the lineal descendants of Emily Shanks Kornegay, it being contended that these grantors had a one-third interest in the lot. Several witnesses testified for the plaintiff as to who were the surviving lineal descendants of James D. Shanks. One of the witnesses testified that none of the legal heirs of James D. Shanks had ever been in legal possession of any part of land lot 250. The plaintiff offered no evidence that either James D. Shanks, the administrator of his estate, or any of his legal heirs, had ever been in possession of any part of the land lot. The plaintiff testified that he was living on the land lot when he bought the property in 1947; that none of the property was under cultivation; and that there were four or five thousand graves on a part of the land lot.
The defendant introduced in evidence an award made by two commissioners on December 8, 1869, and orders of Lowndes Superior Court making the award the decree of the court at the May term, 1870, of said court. The award in substance provided as follows: that, under an agreement between the parties at interest in the estate of James D. Shanks, two commissioners were appointed to divide the property belonging to the estate of James D. Shanks; and the award, in reciting the parties at interest in said estate, named "John Isom, assignee of Edwin G. Shanks, Thomas W. Bell and his wife, and Jesse G. Chewning and his wife Emily, heirs also of the said estate"; and it was recited that Thomas W. Bell and his wife Anna, and Jesse Chewning, in right of his wife, Sarah, and Elizabeth Black, had a 36/100 interest in the estate. In distributing the estate, the commissioners awarded John Isom, assignee of T. W. Bell and Anna, his wife, among other lots of land, lot 250 in the 17th district of Henry (now Fulton) County. The award further recited that T. W. Bell and his wife were indebted to the estate of James D. Shanks in the sum of $500.50; and, after making awards to the other heirs of the estate, the award recited that the assignees of the respective purchasers were required to assume and become liable for the payment of certain sums; "and that the title to said lots of land as is above set forth, respectively, only vests in them on the payment of the aforesaid several sums of money, and after the debts due [to] the estate of James D. Shanks are paid, and they give the receiver of said estate refunding bond." It was recited that, by agreement, the aforesaid division was to be made the judgment of the Superior Court of Lowndes County.
The defendant also introduced in evidence muniments of title from John Isom dated December 13, 1870, into Emory College, dated December 20, 1937, and from Emory College to Charles H. Cone on March 1, 1939, all of these conveyances covering the 85-acre tract described in paragraph 5 of the petition. There was evidence that a part of this 85-acre tract had been used for cemetery purposes in the burial of persons for more than 20 years, and part of the tract was undeveloped. There was no evidence that any part of the cemetery was enclosed.
As we view the case, there are but two questions necessary for decision: first, did the court err in admitting in evidence a copy of the award and decree dividing the estate of James D. Shanks? and second, did the court err in directing a verdict for the defendant as to the 85-acre tract of land on her cross-bill?
1. The plaintiff objected to the introduction of the award and decree on the ground that the award of land lot 250 in the 17th district of Fulton County to John Isom, assignee, was upon a condition precedent, viz., the payment of $500.50, representing a debt of T. W. Bell and his wife to the estate of James D. Shanks, and there being no evidence that this debt was ever paid, no title passed out of the estate of James D. Shanks or his legal heirs, and no title or interest vested in Isom or his assignees by virtue of this award.
A mere lapse of time after a debt becomes due may raise a presumption of payment. After a lapse of 20 years, a judgment is presumed to have been paid. Burt v. Casey, 10 Ga. 178. After a lapse of 30 years, it is legitimate to presume that all debts of an estate have been paid. Coleman v. Lane, 26 Ga. 515 (1). The law presumes that after 20 years the purchase price of property has been paid. Patterson v. Campbell, 136 Ga. 664 (4) ( 71 S.E. 1117). It was held in McWilliams v. McWilliams, 206 Ga. 493 ( 57 S.E.2d 599), that, where a father had executed a bond for title to his son covering a tract of land, and the son had given to his father a series of notes representing the purchase price of the land, after 31 years, the son being in possession of the land, it will be presumed that the notes had been paid and that the son had a perfect equity in the land.
The undisputed evidence in this case shows that neither the representative of the estate of James D. Shanks nor any of his heirs have ever been in possession of the 85-acre tract, in whole or in part, nor have they ever asserted any claim or right of re-entry because of any breach of the condition of the conveyance to John Isom. Also, under the undisputed evidence, it appears that from 1871 to 1947, the time the plaintiff acquired a deed from some of the heirs of James D. Shanks, recorded muniments of title passed through many hands, and the part of the tract that the defendant claimed title to has been for more than 30 years used for cemetery purposes. The award of land lot 250 containing a condition as to payment of a sum of money before title would pass, was made in 1870; and, in the absence of any rebuttal evidence that the debt has never been paid, certainly after a lapse of 80 years it will be presumed that the debt was paid and the condition satisfied. Where a division in kind is made between heirs and distributees of a decedent, a certified copy of the return of the commissioners, and of the order of the court approving the same, are admissible in evidence in an action involving title to the land covered by the award. Alaculsey Lumber Co. v. Flemister, 146 Ga. 310 (2) ( 91 S.E. 104). It was not error to admit in evidence the award of the commissioners.
2. Whether the division of the estate of James D. Shanks was entered into under the provisions of the Code of 1863 as to distribution of estates in kind (Code of 1863, §§ 2542-2545; Code of 1933, §§ 113-1018 — 113-1021), or was made under the provisions of that Code as to partition of estates by agreement of the parties (Code of 1863, §§ 3115-3117; Code of 1933, §§ 85-1501 — 85-1503), the division award of the commissioners, which was approved and made the decree of the court, was sufficient to transfer title, out of the estate and the heirs, to the persons to whom particular portions of the estate were awarded. Harris v. Seals, 29 Ga. 585; Byrd v. Byrd, 44 Ga. 258; Code, § 85-1503, supra. When land lot 250 of the 17th district of Fulton County was awarded to John Isom, assignee of T. W. Bell and his wife Anna, the effect of the decree approving the award, without a deed or other conveyance, was to pass to John Isom at least a perfect equity in the property; and the other heirs of James D. Shanks had no further interest in this particular lot, just as T. W. Bell and his wife would have had no further interest in the various portions of the Shanks estate which were awarded to the other heirs. Williams v. J. P. Williams Co., 122 Ga. 178 (5) ( 50 S.E. 52, 106 Am. St. R. 100); Zeagler v. Zeagler, 192 Ga. 453 ( 15 S.E.2d 478).
The grantors in the plaintiff's deed are the lineal descendants of Emily Shanks Kornegay. The effect of the award of 1870 to Isom was to sever any title or interest that she had in land lot 250, and consequently the grantors in the plaintiff's deed received no interest by inheritance to the land lot in question. So, having no interest in this lot, they had no right or title that they could convey to the plaintiff. Under no view of the evidence was the plaintiff entitled to a verdict to establish title to him to any part of land lot 250.
The evidence was sufficient to demand a finding that Charles H. Cone and his executrix had had adverse possession under color of title to the 85-acre tract described in paragraph 5 of the petition for more than 7 years. Code, § 85-407. The court committed no error in directing a verdict for the defendant as to this tract, and in entering a decree declaring that the defendant has title to this tract and was entitled to the possession thereof.
Judgment affirmed. All the Justices concur.