Opinion
22345.
ARGUED JANUARY 14, 1964.
DECIDED MARCH 5, 1964.
Complaint for land. Talbot Superior Court. Before Judge Thompson.
Dan S. Beeland, H. Thad Crawley, for plaintiff in error.
George Richard Jacob, contra.
1. Prescription will not be suspended for any length of time on account of the estate being unrepresented where more than five years elapse after the death of the intestate before administration on the estate.
2. The verdict for the defendant was supported by the evidence, and the court did not err in overruling the plaintiff's motion for a new trial, or in denying his motion for judgment notwithstanding the verdict.
ARGUED JANUARY 14, 1964 — DECIDED MARCH 5, 1964.
John Dozier, as administrator of the estate of Allen Dozier, filed an action against J. D. Parker to recover described land. It was alleged: The defendant is in possession of the land without the consent of the plaintiff. The defendant claims title under a deed to secure debt from Lucius Dozier to H. Cecil Morgan, dated November 24, 1953, and a deed to the defendant under power of sale from Lucius Dozier, by his attorney in fact, H. Cecil Morgan, dated May 7, 1957. The land described in the security deed from Lucius Dozier refers to the land described in a deed recorded in Deed Book HH, page 153, which is the identical deed "under which intestate's title is derived." Lucius Dozier and the plaintiff's intestate were not the same person. "Lucius Dozier, now deceased, was the person in permissive possession of said premises as shown by his affidavit in the office of the Clerk of Superior Court, Talbot County, Georgia, a copy of said affidavit is attached hereto." The defendant's title is invalid because his grantor, Lucius Dozier, did not have title by purchase, descent, or otherwise. The plaintiff is entitled to recover mesne profits in a stated amount for pulpwood, timber, and dirt removed from the land. The prayers were for process and that "plaintiff have judgment."
Attached to the petition as an exhibit was an affidavit by Lucius Dozier executed on June 30, 1961, in which Lucius Dozier stated that: Allen Dozier was not his natural father, but he went by the name of Dozier. Nathan Dozier was Allen Dozier's nephew and was raised by Allen Dozier. After Allen Dozier's death he agreed with Nathan Dozier and "worked the place for the taxes." He had not received "any money for the land in no way." He "did not mortgage or put it up for security or collateral to any one."
In his answer the defendant admitted possession and that he acquired the lands at public sale as alleged. He alleged that Lucius Dozier was in the actual, public, continuous, uninterrupted, and peaceable possession of the lands described from 1930 to 1957, during which period he exercised ownership by placing described security deeds on the land. He denied the truthfulness of the affidavit executed by Lucius Dozier and asserted that on May 7, 1957, Lucius Dozier was mailed check No. 2942 of Robert H. Jordan, attorney, in the sum of $972.26, being the amount due Lucius Dozier following the sale under the powers of sale in the security deed from Dozier to H. Cecil Morgan.
The plaintiff introduced in evidence a certified copy of the warranty deed from W. A. Phillips to Allen Dozier dated April 23, 1912, and a copy of the letters of administration granted to the plaintiff on the estate of Allen Dozier, dated October 8, 1962. The defendant offered testimony as to the adverse possession of Lucius Dozier. He introduced certified copies of deeds executed by Lucius Dozier, and the original check given to Lucius Dozier by Robert H. Jordan in the sum of $972.26, representing the amount alleged to be due Lucius Dozier upon foreclosure of the deed to secure debt from Lucius Dozier to H. Cecil Morgan.
The trial resulted in a verdict for the defendant. The plaintiff's motion for new trial, as amended, was overruled, and his motion for judgment notwithstanding the verdict was denied. He excepts to these rulings.
1. "A prescription shall not run against an unrepresented estate until representation, provided the lapse does not exceed five years; ..." Code § 85-413. "... [W]here more than five years elapse after the death of an intestate before administration upon his estate, prescription will not be suspended for any length of time on account of the estate being unrepresented." Brown v. Caraker, 147 Ga. 498 ( 94 S.E. 759); Danielly v. Lowe, 161 Ga. 279 ( 130 S.E. 687).
The petition alleged that Lucius Dozier entered into "permissive possession" of the premises upon the death of Allen Dozier. The exact date of the death of Allen Dozier does not appear from the record, but Lucius Dozier was in possession of the premises on November 20, 1935, claiming the premises as his own, for on that date he executed a deed to secure debt to the Juniper Milling Company, which deed recited, "and being the land on which the said Lucius Dozier now resides," and contained a warranty of title "against the claims of all persons whomsoever." The letters of administration on the estate of Allen Dozier were not granted to the plaintiff until October 8, 1962, more than five years after the property had been bought by the defendant at public sale in May, 1957, upon foreclosure of the deed to secure debt executed by Lucius Dozier to H. Cecil Morgan, and the letters of administration were granted more than twenty-five years after Lucius Dozier executed deeds to secure debt to Ray Burt in 1934 and to the Juniper Milling Company in 1935. Under these facts there could be no tolling of the prescriptive title of Lucius Dozier by the administration on the estate of Allen Dozier.
2. Neither the petition of the plaintiff, nor the affidavit of Lucius Dozier attached thereto, was offered in evidence by the plaintiff. A petition presents issues, and where denied by the defendant the allegations must be supported by aliunde proof. Patrick v. Holliday, 200 Ga. 259 ( 36 S.E.2d 769); Morris v. City Council of Augusta, 204 Ga. 26, 33 ( 48 S.E.2d 855); Lester v. Copeland, 219 Ga. 195, 200 ( 132 S.E.2d 190). The fact that the affidavit was attached to the petition as an exhibit did not give it any probative value as evidence for the plaintiff, since the defendant's answer denied its truth. The evidence of the defendant contradicted the substantial averments of the affidavit.
Under the allegations of the petition, the testimony of the witnesses for the defendant, and the documentary evidence introduced by the defendant, Lucius Dozier was in possession of the lands for more than twenty years prior to the execution by him of the deed to secure debt under which the defendant claims title pursuant to foreclosure. The documentary evidence introduced by the defendant, consisting of deeds to secure debt executed by Lucius Dozier, and a warranty deed from him to his wife for ten acres of the land formerly belonging to Allen Dozier, executed on November 20, 1945, shows that Lucius Dozier was claiming the lands adversely to the heirs of Allen Dozier. "A presumption of good faith arises from adverse possession" of land. Baxley v. Baxley, 117 Ga. 60 (4) ( 43 S.E. 436); Teel v. Griffin, 142 Ga. 245 (2) ( 82 S.E. 662). Whether the claim of Lucius Dozier to the land was in good faith rather than fraudulent was a question for the jury (and this question was resolved by the jury against the plaintiff). Tucker v. Long, 207 Ga. 730 ( 64 S.E.2d 69).
The evidence amply supports the verdict, and the general grounds of the motion for new trial and the plaintiff's motion for judgment notwithstanding the verdict were properly overruled and denied. "Actual adverse possession of land under a claim of right for twenty years, though originating in mistake, will ripen into good prescriptive title against all the world except the State and persons not sui juris." Waxelbaum v. Gunn, 150 Ga. 408 ( 104 S.E. 216); Lockwood v. Daniel, 193 Ga. 122 (2) ( 17 S.E.2d 542).
The amended ground of the motion for new trial, based upon objections to the documentary evidence introduced by the defendant, is without merit and was properly overruled. The deeds to secure debt executed by Lucius Dozier, and the warranty deed executed by him to his wife to ten acres of land formerly belonging to Allen Dozier, were admissible in evidence to show that Lucius Dozier was claiming title to the land, and to refute the contention that he claimed to exercise only permissive possession of the lands.
Judgment affirmed. All the Justices concur.