Opinion
16974.
FEBRUARY 14, 1950. REHEARING DENIED MARCH 15, 1950.
Injunction, etc. Before Judge Edmondson. Dawson Superior Court. November 12, 1949.
Herschell V. Shelton, Grady Vandiviere, and Joseph G. Collins, for plaintiffs in error.
Wheeler, Robinson Thurmond and Emory F. Robinson, contra.
While a person may acquire a prescriptive title to land by constructive possession, yet, where there is evidence tending to negative good faith of the plaintiff's possession, and other evidence tending to prove adverse possession by the defendant, it is error to direct a verdict for the plaintiff.
No. 16974. FEBRUARY 14, 1950. REHEARING DENIED MARCH 15, 1950.
Mrs. Annie M. Anderson, as executrix of the estate of her husband, filed a suit against Mrs. Neppie Cochran Mincey and others to prevent the cutting of timber. Each claimed title to the land in dispute, and the ownership of the title is the controlling question. The land involved is land lot number 263 in the Fifth District and First Section of Dawson County.
Mrs. Anderson sought to establish a chain of title thereto, in which there was a missing link, but did produce a deed from a predecessor in title to herself dated December 31, 1940. On February 7, 1941, she deeded it to Inez O. Hendrix, who on the same day deeded it to M. M. Anderson, the husband of the plaintiff. M. M. Anderson died on December 23, 1941, and by his will Mrs. Anderson was devised a life estate in all of his property. His deed was duly recorded, and covered lot number 263, other land, and also the west half of lot number 282, which adjoined lot number 263 on the south. While asserting no actual possession of lot 263, the plaintiff sought to establish constructive possession thereof, and thereby to acquire prescriptive title thereto, by showing payment of taxes on lot 263, and actual possession of a small portion of the southern part of the west half of lot No. 282 by cultivation for a period of more than seven years. In her testimony she stated that she knew that the defendant claimed the land in 1936, and at that time she tried to buy it from the defendant, and further stated. "At that time I didn't claim any interest in it nor did any one I claim under."
The defendant, Mrs. Mincey, had a deed to lot 263, recorded March 13, 1920. She testified that the Cochrans, under whom she claimed, settled on property including lot 263 somewhere around 1838. She also testified that at the time she acquired the property those under whom she claimed had cultivated a portion of the lot since 1875, and when she bought it a fence enclosed about 30 or 35 acres, which she used as a pasture for several years; that she cleared up an acre and fenced it in 1929. Her evidence to establish possession since February 7, 1941, the date of the Anderson deed, was that she had cleaned around an apple tree each year, that logs were cut and sold in 1941 and 1942, and that she had paid the taxes thereon each year.
At the conclusion of the testimony the trial judge directed a verdict for the plaintiff.
Under the Code, §§ 85-404, 85-405, a person claiming under a recorded deed may have constructive possession of lands and may, under §§ 85-401, 85-402, acquire a prescriptive title to all lands which are covered by the deed and are contiguous, by having actual possession of a part thereof for a period of seven years. Campbell v. Gregory, 200 Ga. 684 ( 38 S.E.2d 295), and citations. In the present case there was evidence that the plaintiff executrix, who was a predecessor in title immediately before her deceased husband and who sought to establish constructive possession in her deceased husband, tried to purchase the land from the defendant in 1936, which was five years before the plaintiff or her husband acquired a deed; and as to this she testified, "At that time I didn't claim any interest in it nor did any one I claim under." This constituted an admission against her interest on the question of good faith as to possession. Quarterman v. Perry, 190 Ga. 275 (2) ( 9 S.E.2d 61). There was also evidence that the defendant paid the tax on the lot in dispute each year since the plaintiff's deceased husband acquired his deed, which was a circumstance tending to prove adverse possession by the defendant. Chamblee v. Johnson, 200 Ga. 838 (2) ( 38 S.E.2d 721), and citations. Accordingly, there being questions of fact for the jury to determine, it was error for the trial judge to direct a verdict for the plaintiff.
Judgment reversed. All the Justices concur.