Kesler v. Verner , 161 Ga. 118 ( 1925 )

Russell, C. J.

(After stating the foregoing facts.)

We think the learned trial judge erred in refusing to restrain the defendants from proceeding with the erection of a school building on the land which had been deeded to the Society at Prospect by Henry Kesler in 1848. There is no evidence that any One has attempted to convey the one acre of land in question in this case, except to the board of education of Franklin County. Had this transaction been perfected the question presented might be different; but in this instance there has'been no conveyance to the board of education of Franklin County, for the sufficient reason that the evidence is undisputed that no deed has been delivered to the board of education; it declines to accept any title or interest in the land sought to be conveyed, and in its plea and answer has absolutely disclaimed title. The grantee refuses to accept the gift, and thereby the purported deed is ineffectual and void. It is not necessary to be decided whether the parties signing the deed were empowered to do so, since the evidence is unequivocal and uncontradicted that the grantees in the deed declined to become parties to the contract.

In the trial of the case the defendants in error seem to have recognized that their title depended upon prescription, and much evidence was introduced to show that for fifty years a school has been conducted upon the premises in dispute, and that more than one building has been erected on the lot for school purposes. However, the nature of the evidence is such as to be wholly insufficient to support a title hy prescription. Prescription can not arise from permissive possession. In its very essence it must depend upon a possession hostile to and adverse to any other claim. All the evidence in this case shows that at their pleasure the school children and patrons of the school used any and all portions of the ten-acre tract originally donated to the Society at Prospect hy Henry Kesler. Likewise, it appears that the members of Prospect Church, so far as appears, without objection, actively assisted in the erection of the school buildings from time to time upon the grounds. Evidence that the members of the church freely used and hitched their stock and parked their automobiles upon the land now claimed by the school is uncontradicted. That the patrons of the school cut and used wood and timber on any portion of the church property without objection is unquestioned. Without recapitulating various circumstances, the evidence, in our opinion, demanded a finding that such possession as was enjoyed by all of the schools from their inception to the present time, instead of purporting to be adverse or hostile to Prospect Church, was merely permitted in behalf of the cause of education, as a temporary contribution to that cause. No witness was introduced to testify that there was ever a survey made of the exact acre intended to be used by the school, or that the precise logation and boundaries of this acre were ever agreed to by any one claiming to be an officer of the church prior to the date of the deed, which was not accepted by the grantees and was entirely too recent for purposes of prescription. Prior to February 5, 1924, when the deed was evidently prepared, the trustees of the church, who are defendants in error, did not consider that they had been ousted by prescriptive title, as they were elected by the quarterly conference at Toccoa for the sole purpose of making the deed to the board of education, after other trustees had refused to do this. The board of education of Franklin County disclaims title altogether, so that as a matter of fact there are no pleadings in the answer to authorize a finding in favor of prescriptive title. In the argument much stress is laid on the fact that several years ago the authorities in charge of the school cleaned off the ground included in the purported deed from the church trustees to the board of education of Franklin County, and beautified it by planting trees and flowers thereon. Considering the evidence as a whole, the course pursued by the congregation at Prospect in its patronage and assistance of a school in this central location for many years, the fact that the trees and flowers would naturally beautify these grounds which were near the church building, and the further fact in the evidence that persons attending services at the church have continued to use, for the purpose of parking their automobiles and hitching their horses, the same location and facilities as they have always used, the planting of trees and flowers do not afford a circumstance sufficient to evidence a claim of right hostile to that of the church, nor a claim of possession adverse to that of the latter.

Judgment reversed.

All the Justices concur.