Opinion
21599.
ARGUED APRIL 10, 1962.
DECIDED MAY 16, 1962.
Injunction. Douglas Superior Court. Before Judge Foster.
Dann Winn, Eugene B. Brown, for plaintiffs in error.
Otis L. Davis, contra.
1. Where, by allegations of their petition and by undisputed evidence adduced during the trial, the plaintiffs established title by prescription through adverse possession of over 20 years' duration, and wrongful acts by the defendants in regard to that title, they made out a prima facie case which would entitle them to a judgment.
2. In order to rely on the defense of a bona fide purchaser, the defendants must take without notice. Where their own muniments of title revealed a defect which would put them on inquiry, the defendants were charged with notice of everything diligent inquiry might have disclosed.
ARGUED APRIL 10, 1962 — DECIDED MAY 16, 1962.
James Bridges, Earl Mozley and James Bridges, Jr., as Trustees of the Andrews Chapel A. M. E. Church, brought this action against J. M. Henson and Mrs. Ella Turner Henson in the Douglas Superior Court, seeking to enjoin and restrain the defendants from interfering with their possession and enjoyment of a certain described parcel of land amounting to two acres, and that the plaintiffs' right in such land be decreed good and sufficient title.
When this case was previously before this court on general demurrer ( Bridges v. Henson, 216 Ga. 423, 116 S.E.2d 570), we held that the petition was sufficient to show adverse possession for a period of over 20 years, thereby acquiring title by prescription, and that the defendants' purported acts in relation to that land encompassed a wrongful interference with the plaintiffs' rights; therefore grounds for equitable relief were set out.
The defendants in their answer, besides denying the material allegations of the petition, offered the further defense that they were bona fide purchasers of the land. They set out their deed from a Mrs. Esther S. Brooks (also known as Mrs. A. B. Aubry) dated November 27, 1957, by which they purchased 21 acres, more or less, in Land Lot 134 of the 1st District of Douglas County. In their muniments of title, extending back some 59 years, which chain of title was attached as exhibits, were two deeds dated 1944 and 1950, which passed the larger portion out of which the land deeded to the Hensons (1957) was carved "except 2 acres used by Andrew's Chapel Church."
The case came on to be tried before a jury in Douglas Superior Court and at the close of the evidence from both sides, the pertinent portions of which will be stated hereinafter, the trial judge directed a verdict in favor of the plaintiffs. From this judgment the defendants filed their motion for new trial on the general grounds and, by subsequent amendment, on the ground that the court erred by directing a verdict in that there were issues of fact which should have been submitted to the jury.
The trial judge denied the motion for new trial on January 9, 1961. The defendants assign error on the denial of their motion for the reasons stated therein.
The evidence adduced on the trial was substantially as follows:
The plaintiffs' witnesses testified that the church had been in existence and in possession of the land in question from approximately 1915 until 1945, when the church building had been destroyed by fire; that the land had been originally given to the church around 1915 by one of the grantors in the defendants' chain of title, and that afterwards they had occupied and used the land openly and notoriously under such claim of right until the destruction of the building; that the land had not been used for church purposes from 1945, when the building burned, until 1959, when the pastor and some members of the congregation went upon the land to clear it for rebuilding purposes; that during the period from 1945 to 1959 the church had never disbanded or dissolved but continued to function, holding services in another church building; that the defendants had ordered the members of the church to leave the disputed parcel of land on two separate occasions, once at gun point; that the defendants had prosecuted the pastor and one of the members of the church for trespass and had placed a fence about the land, thereby obstructing ingress to or egress from said land.
The defendants admitted ordering the church members off the land, the prosecution for trespass and the erection of the fence. They claimed the right to do so under a chain of title (containing the before-mentioned 1944 and 1950 deeds), which was duly introduced into evidence. The only attempt to rebut the plaintiffs' title obtained by adverse possession for more than 20 years was that of one witness, who stated that he passed by the land occasionally during the years 1928-1934, and that the church building was in a dilapidated condition, and he never saw a church gathering or meeting there. However, he further stated: "If they had services there I didn't know it. They could have had without my knowing it."
1. Once this court decided that the petition in the instant case set out a cause of action for injunctive relief, such ruling became the law of the case. Thereafter, the plaintiffs proved the averments of their petition by overwhelming evidence, showing title by prescription through adverse possession of over 20 years' duration, and that the defendants had acted in the manner set forth by the allegations of the petition. The sole testimony which attempted to contradict the plaintiffs' evidence as to prescriptive title was merely that the witness had seen no church meetings in the building. This did not amount to a denial of the church's exclusive, open, and notorious possession of the land for church purposes or that no meetings or services commensurate with such occupation were not held. Moreover, the defendants did not deny, but admitted, the alleged wrongful acts as enumerated by witnesses for the plaintiffs. Hence, there being no contradictory proof tending to negate the allegations as laid and the evidence as adduced, the plaintiffs established a prima facie case, which would entitle them to a judgment.
2. Here the defendants set out a defense which, if proved, would defeat any valid holder of title by contending they were bona fide purchasers. The law requires that, in order that one qualify for the status of a bona fide purchaser for value and without notice, he must have paid the purchase price before receiving any notice of prior conflicting claims or rights. Carter v. Pinckard, 68 Ga. 817 (1); Mackey v. Bowles, 98 Ga. 730, 733, 734 ( 25 S.E. 834); Gleaton v. Wright, 149 Ga. 220 (1) ( 100 S.E. 72); Ross v. Rambo, 195 Ga. 100, 113 ( 23 S.E.2d 687).
Code § 37-116 provides that notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Further, one claiming title to lands is chargeable with notice of every matter which appears in his deed, and of any matters which appear on the face of any deed, decree, or other instrument forming an essential link in the chain of instruments through which he deraigns title, and of whatever matters he would have learned by any inquiry which the recitals of those instruments made it his duty to pursue. 92 CJS 241, § 330; Harper v. Durden, 177 Ga. 216, 227 ( 170 S.E. 45, 89 ALR 625); Hancock v. Gumm, 151 Ga. 667 ( 107 S.E. 872, 16 ALR 1003); Carmichael v. C. S. Bank, 162 Ga. 735, 736 (3) ( 134 S.E. 771).
Hence, when the defendants plead the 1944 and 1950 deeds, hereinbefore referred to, they divested themselves of an essential ingredient prerequisite to the status of a bona fide purchaser, i.e., notice, and it became incumbent on them to show diligent inquiry such as would be pursued by prudent men or that such diligent inquiry would not have uncovered either the rights under which the church claimed the land or that such two-acre parcel did constitute a portion of the land excluded from the acreage described in their deed. Dyal v. McLean, 188 Ga. 229, 231 ( 3 S.E.2d 571); Bell v. Bell, 178 Ga. 225 (5) ( 172 S.E. 566); Calhoun v. Ozburn, 186 Ga. 569, 572 ( 198 S.E. 706). See also Hall v. Turner, 198 Ga. 763, 769 ( 32 S.E.2d 829). A thorough review of the record evinces no inquiry whatsoever by the defendants, or attempt to explain why such inquiry would have been futile. Thus it will be presumed that due inquiry would have disclosed the existent facts. Parker v. Gortatowsky, 127 Ga. 560, 563 ( 56 S.E. 846); Austin v. Southern Home Bldg. c. Assn., 122 Ga. 439 ( 50 S.E. 382).
Since a purchaser is conclusively charged with notice of what appears in the deed or muniments of his grantor's chain of title, regardless of whether the purchaser has actually seen or read it or has any knowledge of its contents ( Harper v. Durden, 177 Ga. 216, 227, supra, and cases cited), the facts disclosed in the two deeds in the defendants' chain of title were sufficient to put the purchasers on inquiry, and they, in law, had notice of what a proper inquiry would have revealed. 55 Am. Jur. 1083, § 708; Jordan v. Pollock, 14 Ga. 145, 157; Gordon v. Irvine, 105 Ga. 144, 150 ( 31 S.E. 151); Georgia R. Bank c. Co. v. Liberty Nat. Bank c. Co., 180 Ga. 4, 17 ( 177 S.E. 803); Toms v. Knighton, 199 Ga. 858, 862 ( 36 S.E.2d 315).
The defendants having failed to perfect their defense as bona fide purchasers for value and without notice, and the plaintiffs having established their title by prescription and the undisputed fact of the wrongful acts on the part of the defendants as to that title, constituting a prima facie case, the trial judge did not err in directing a verdict for the plaintiffs.
Judgment affirmed. All the Justices concur.