Roberson v. Downing Co. , 120 Ga. 833 ( 1904 )

Lamar, J.

(After stating the foregoing facts.) 1. The deed from Burbage to Armitage, dated March 11, 1881, was witnessed by John H. McCollough and E. H. Harris, notary public. Ic was recorded March 14, 1881, but the clerk erroneously entered the name of the notary public as T. H. Harris. The defendants therefore insist that the possession thereunder by Armitage, and thereafter by McDonough and Mrs. Lary, was not possession under a duly-recorded deed, and hence there could be no constructive possession of the entire tract described' in the color. Civil Code, § 3786. But bad writing by the notary, incorrect reading by the clerk, or his errors in transcribing the original, will not destroy the registration as constructive notice, if the errors are immaterial, or of a character which will not mislead one entitled to notice, when he examines the record actually made. • If the property be misdescribed, or if the names of the parties to the instrument be so entered as to deceive an innocent purchaser, or fail to give substantial notice to one entitled thereto, a different question might be presented. In many cases there are, no doubt, slight' inaccuracies in transcribing the paper upon the deed book. It will be rare where in spelling, punctuation, or the like there is not some slight variation from the original. An error in a formal part of the instrument would not concern those not interested therein, nor have the effect of nullifying the notice given by the substántial correctness of the registration of the material parts of the paper. To one examining the books in the clerk’s office, this deed would appear on its face to have been duly recorded. The defendant’s evidence showed that it was actually executed in the presence of an officer and was entitled to record. The mistake in substituting the initial “ T ” for “ F ” was not of a character to throw an examiner off his guard. The names of the grantor and grantee, the description of the property, and the fact that the land had been sold in fee, were clearly and correctly indicated, and were sufficient to put the true owner on notice that such -an instrument had been executed in the presence of an officer authorized to attest deeds, and that the occupant under siich instrument claimed or might be claiming constructive possession of all the property therein described. Woodson v. Allen, 54 Tex. 551. In Shepherd v. Burkhalter, 13 Ga. 443 (5), the entire signature of the mortgagor was omitted from the record, and in Williams v. Adams, 43 Ga. 410, the signature of the attesting officer was entirely omitted on the deed book. These omissions were substantial. On the face of the record such papers were either incomplete or not entitled to record, and therefore gave no notice. But in Hadden v. Larned, 87 Ga. 639, where the paper had been executed out of the State in the presence of a commissioner, and the clerk failed to transcribe the seal of such commissioner, it was held that while the record should have indicated that a seal had been used, its failure so to do did not vitiate the registration. - “ To pronounce the recording fatally defective for so slight a blemish would be over technical.” See Way v. Lowery, 72 Ga. 65, and Johnson v. Duncan, 90 Ga. 1, where there was a mistake in the number of the lot. See also Smith v. Meador, 74 Ga. 416, where tlie officer was only such de facto; Banks v. Lee, 73 Ga. 26; Burke v. Anderson, 45 Ga. 35; St. Croix Co. v. Ritchie, 73 Wis. 409; Lewis v. Hinman, 13 Atl. Rep. 143; dissenting opinion in Jennings v. Wood, 20 Ohio, 279 (Lemuel for Samuel); Royster v. Lane, 24 S. E. Rep. 796 (mistake of the name in the granting clause).

2. If, then, this deed from Burbage to Armitage was duly recorded, and there was continuous and adverse possession of any part of the land thereunder for seven years, plaintiff would have been entitled to a verdict, even under Knight v. Isom, 113 Ga. 617; and the judge rightly granted a new trial; unless the defendant’s contention be correct, that, under the Civil Code, § 3587, there could be no tacking when the subsequent conveyances were not immediately and duly recorded and followed by continuous possession thereunder by the subsequent grantee. Such seems to be the ruling in Texas, but the decisions are based upon the statutes of that State, which fix one period for prescription without color, another for prescription under color, and a still shorter period under recorded color. The Civil Code, §3587, is not to be constru'ed as modifying,.but as in pari materia with § 3598, that, “An incohate prescriptive title may be transferred by a possessor to a successor, so that the successive possessions may be tacked to make out the prescription.” If A enters under color duly recorded, and dies, the possession of his heirs-is but a continuation of A’s possession. Or if A should lease such property, his possession would be continued by the tenant although the lease may not have been recorded. If, on the other hand, he sells, the purchaser is in privity with him, and the effect of the entry under the sale is to maintain and continue such original possession, or at least to afford a foundation on which the new possession can be tacked. A similar question was decided in Dolton v. Cain, 14 Wall. 472, under the Illinois statute, that one “having a connected title in law or equity deducible of record from the State or the United States can plead the possession in bar of the suit.” It was there held not to be necessary that the entire title of the defendant be evidenced by actual record. If the source of the title is of record, it is available to every person claiming a right under it who can connect himself with it.

3-5. The court therefore properly granted a new trial. The case might here be left but for the fact that the defendants in error, who were plaiiífiffs in the court below, filed a cross-bill of exceptions, and assigned error on that part of the charge in which the court instructed the jury that “possession' under a duly recorded deed will be construed to extend to all the contiguous property embraced therein; that is, if a person is in actual possession of a part of a lot of land under a duly recorded deed conveying the whole of the lot of land to him, or more of the lot than he is in actual possession of, has enclosures upon such part of lot, under fence, houses built upon it, or other evidence of actual possession as I have charged -you, and has his deed duly recorded under this section of the code, he will be construed to have in his possession all of the land embraced within the boundaries set out in his deed.” In the argument on this and similar assignments, the defendant in error asked and obtained permission to review Knight v. Isom, 113 Ga. 617, a decision by six Justices, and Baxley v. Baxley, 117 Ga. 60, by five Justices. The briefs and discussion were directed solely to this motion.

All of the courts in this country recognize the same rule on the subject of constructive possession as that laid down in the Civil Code, § 3586, but there is much difference as to the incidents and circumstances under which it will be applied. As said in Woods v. Montevallo Co., 84 Ala. 560, “How far'color of title to the land, accompanied by actual occupancy of a part, will extend the occupant’s possession constructively to the whole tract included in the deed, is not definitely settled, and, we may add, is a subject full of difficulty.” Possession of a comparatively small part has been decided not to be constructive possession of a tract consisting of 4,000 acres, 20,000 acres, .or 48,000 acres. Jackson v. Woodruff, 1 Cowen, 276; Thompson v. Burhans, 61 N. Y. 52; Chandler v. Spear, 22 Vt. 405; Polk v. Beaumont, 64 S. W. Rep. 58. In Archibald v. Railroad Co. (1896), 1 App. Div. Sup. Ct. N. Y. 255, it appeared that the New York Central Railroad Company had a grant to a strip of land extending 140 miles from New York City to .Albany, and adjoining its track. It built a station on the strip at Yonkers, and contended that possession of a part' under color gave it constructive possession of the balance; but of course the court refused to sustain this contention. Some courts hold that there can be no such thing as constructive adverse possession; others that constructive possession can not defeat the constructive possession of the absent owner; others that it is effective only when the tract consists of a known farm with well-defined boundaries ; others that the unoccupied portion must be subservient to and. capable of a use and be actually used in connection with that held possessio pedis; as by the grazing of stock, cutting of firewood or hay, or some act to indicate the assertion of title, even though by themselves such acts were insufficient to establish independent adverse possession; others hold that it does not apply where the occupation is of a small part of a large tract. Turner v. Stephenson (Mich.), 2 L. R. A. 277; Foulke v. Bond, 41 N. J. L. 550 ; Thompson v. Burhans, 61 N. Y. 52; Jackson v. Woodruff, 1 Cowen, 276; Northport v. Hendrickson, 139 N. Y. 440; Murphy v. Doyle, 37 Minn. 113; Chandler v. Spear, 22 Vt. 405. And this court has likewise recognized that possession of a part does not necessarily extend to the limits described in the color; as, for example, where the enclosure was of a small part of a field which took in a portion of three tracts cornering therein. Denham v. Holeman, 26 Ga. 183, 191. And in Carrol v. Gillion, 33 Ga. 547, the owner of property bought adjoining land at a tax sale, cut timber and rails therefrom, extended the enclosure over the land, and took in a strip across the whole length of the property bought' at tax sale, and continued to cultivate and occupy this strip for more than seven years; yet it was held that such possession did not give him title to the limits in the color. Not only haVe modifications and limitations like these been indicated, but some courts have gone furthér, and, for the reasons stated in Anderson v. Dodd, 65 Ga. 404 (bot.), held that not only must there be possession of a part and color, but that the color should be recorded, in order for the prescription to ripen over that part of the land held only in constructive possession.

“ While a person entering upon lands adversely, without' any deed or color of title, is thus restricted to the land actually occupied by. him, and takes nothing beyond the limits of his actual occupancy, and is required to occupy the land for the purposes of- improvement or cultivation, yet where a person goes into possession under color of title, duly recorded, in which the boundaries of the lot are defined, this operates as constructive notice to all the world, of his claim, and also of its extent, so that not only does a sufficient occupancy of a part in the lot carry with it, by construction, the possession of the entire premises described by his conveyance, where the boundaries are well defined, but also dispenses with the rule as to pedis possessio, and only requires from him such an occupancy as the nature and character of the premises admits of.” Wood on Limitations (3d ed.), § 259. In Prescott v. Nevers, 4 Mason, 330, a suit for cutting timber off of lot number 1, where one of the parties claimed title by virtue of possession of a part, and constructive possession of the balance of the lot, Judge Story said: “ I take the principle of law to be clear, that where a person enters into land under a claim of title thereto by a recorded deed, his entry and possession are referred to such title; and that he is deemed to have a seisin of the land coextensive with the' boundaries stated in his deed, where there is no open adverse possession of any part of the land so described, in any other person.” In Gardner v. Gooch, 48 Me. 487, it was held that where a grantee is in possession of part, under a recorded deed, he is presumed to be in possession of the whole. “ The law of constructive possession declares that the deed of the lot to the settler which may be found on record . . shall, so far as his title is concerned, be a substitute for a substantial and permanent fence around the whole.” Chandler v. Spear, 22 Vt. 405. “If a man enters upon a tract of land under a deed duly registered, . . and has a visible occupation of part of it only, the true owner is disseised of the whole tract.” Farrar v. Eastman, 10 Me. 195. See also Pomeroy v. Stevens, 11 Met. 244; Nye v. Alfter, 127 Mo. 530; Shedd v. Powers, 28 Vt. 655; Alexander v. Polk, 39 Miss. 738; Forrest v. Jackson, 56 N. H. 357. To the same effect is Weitman v. Thiot, 64 Ga. 17. There separate tracts had finally become a single plantation. Error was assigned upon an instruction to the jury that if a party is in possession of a part of a trad of land he is in possession to the boundaries of the tract. As to which Judge Jackson said: “ The charge in respect to the extent of possession by construction, when the party actually possesses part, is right, as we understand it. The law is that it extends as far as the boundary of the tract described in the deed if recorded, or if the boundaries are known to the contesting party.” In Johnson v. Simerly, 90 Ga. 212, there had been five lots, but they really constituted one tract. The court cited Parker v. Jones, 57 Ga. 204, to the effect that the word “tract” means all the land embraced in the deed, no matter of how many different parcels it was originally composed, and approved a charge that the possession of a part would be constructive possession of the entire tract, if the deed was properly recorded. Possession under such a deed of a part of the land thus conveyed would embrace the whole tract thus described in the deed.

On the other hand, there are cases to the effect that record of the color is not necessary. In 1 Am. & Eng. Ene. L. (2d ed.) 860, will be found a reference to a case in the Supreme Court of the United States, construing a Tennessee statute, and cases from California, Illinois, Mississippi, New Hampshire and North Carolina, holding that registration of the color is not essential. The ruling in Carstarphen v. Holt, 96 Ga. 703, is to the same effect, for it is there said that the rule requiring registration was to be limited to those cases where there were independent and distinct lots. See Janes v. Patterson, 62 Ga. 527; Tritt v. Roberts, 64 Ga. 156 ; Griffin v. Lee, 90 Ga. 224; Anderson v. Dodd, 65 Ga. 402. It may be argued, however, that while there is a presumption that the code states the law as it was, yet where there was a conflict in the decisions, one of its most useful offices was to settle the conflict and remove the doubt; that the use of the words “ contiguous property,” instead of “ contiguous lots,” in effect made statute law the principle involved in Weitman v. Thiot, 64 Ga. 11, and in Johnson v. Simerly, 90 Ga. 612, which in turn were based on the principle announced in the much older case of Nevers v. Prescott, 4 Mason, 330; and that Knight v. Isom, 113 Ga. 617, and Baxley v. Baxley, 117 Ga. 60, were really based op the Civil Code, § 3587, without having attention called to the fact that the deeds under consideration were older than the code. Whatever §3587 may mean, — whether it refers to single tracts or plantations like those described in the Weitman and Johnson cases, or to contiguous lots, mentioned in Carstarphen v. Holt,— can make no difference in the present case. Nor can we, under the record here, undertake to review cases which construe § 3587, when the plaintiff’s case involves the construction of deeds executed long before the code, and where some were recorded and some not recorded. The case is to be controlled, not by § 3587, and not by cases which were construing that section, but by the law as it existed between 1881 and 1896. Pollard v. Tait, 38 Ga. 439 (4). We have already shown that there was a conflict at that time. How that conflict is to be resolved depends upon rules of construction usual in such cases. On an examination of the authorities we find that older cases, not cited in any of the opinions above referred to, and not called to the attention of the court in this case, hold in effect that possession of a part of a known tract gives constructive possession of all the lands in such known tract which are described in the color. Wiley v. Warmock, 30 Ga. 701; Morrison v. Hays, 19 Ga. 296; Griffin v. Sketoe, 30 Ga. 300. These older authorities control.

The assignment in the cross-bill does not raise any distinction between the law before and after the code, nor suggest that the charge, if right under the code, was inapplicable to the facts. All of the other assignments of error were abandoned. While, as stated above, the charge of the court in following Knight v. Isom was inapplicable to the facts of the case, we are not called upon to decide whether it was or was not a correct statement, of the law since the adoption of the code. And for that reason the judgment is

Affirmed on both bills of exceptions.

All the Justices concur.