Morris v. Davis , 75 Ga. 169 ( 1886 )

Jackson, Chief Justice.

Mary A. Davis filed in the superior court of Fulton county a petition for partition of certain property on Forsyth street in Atlanta, alleging that she was tenant in common with Lou Ida and Martha 0. Davis, minors, who were represented by trustees and guardians. The defendant denied the tenancy in common, and on that issue was joined, and the jury found for the plaintiff. On the denial of a motion for a new trial, the defendants excepted, and the case is before this court for review.

1. “There can be no adverse possession against a co-tenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession.” Code, §2303. There is no proof in this record of actual ouster of Mrs. Davis, or of exclusive possession after demand by her, or of express notice to her of adverse possession against her claim of tenancy in common. Therefore, if she ever was a tenant in common with Lou Ida and Martha 0., there is no evidence on which a charge, submitting the question of adverse possession for seven years) and thereby presumptive title, against her could be predicated. So there was no error in refusing, or rather omitting, to present that question to the jury.

2. Whilst an innocent purchaser for value is protected from irregularities in the time of advertising in sales by the sheriff under state and county taii.fi. fas., as under executions issued on judgments, yet where the levy is excessive and the advertisement is a wholly inadequate and incomplete description of the real estate to be sold for such taxes, the levy is void, the sale is illegal, and no title passes to the purchaser. The purchaser at all judicial sales “depends upon the judgment, the levy and the deed.” He must see to these, and guard himself against their illegality. 11 Ga., 423, 5th head-note.

In this case, the levy is on an entire piece of property, consisting of two separate portions derived from different titles, one embracing twenty-seven feet front on Forsyth street, and the other twenty-five feet front; either would have brought more than the taxes. For one, four hundred dollars had been given. It was excessive to levy and sell the other with it in one lump for some fifty dollars of taxes. 25 Ga., 103; 72 Id., 637; 52 Id., 164.

Therefore, giving to the sale under this state and county tax execution the same force to protect purchasers as if made under executions on regular judgments, by virtue of Code, §§890, 893, Byars et al. vs. Curry et al., decided at this term, we hold this sale void, because the levy is excessive and voids the sale.

3. The only question remaining necessary to uphold the verdict relates to Ihe construction of the deed from L. II. Davis to his first wife, Lizzie E. Davis, and her children, dated 31st of January, 1870. In our judgment, this deed conveyed the fee to Mrs. Davis and the children, and when Mrs. Davis died, her husband inherited one-third of her interest, making one-ninth of that twenty-five foot front lot his, and this was conveyed by him to the second wife, the defendant in error. The words of the deed are, after stating the consideration of love and affection,

“Have tliis day given, granted and sold to said Lizzie E. Davis, for the support of herself and her present and future children, the following described real estate ... to have and to hold the same in fee simple for the purpose aforesaid.”

By section 224S of our Code, “every conveyance, properly executed, shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance.” No less estate is limited here, but the estate is to be had and held in fee simple for the support of mother and children.

These views make it unnecessary to examine other points. If we are right in them, the evidence required the verdict, and the judge was right to refuse a new trial.

Judgment affirmed.