Virgin v. Wingfield , 54 Ga. 451 ( 1875 )

McCay, Judge.

1. The issue on trial here was the right of the complainants to this land, and the transaction between Weems and Wylie is not any transaction of the plaintiffs or their agent with him. Weems is not the other party to the suit, or one of the other parties, nor do the complainants claim under him. They propose to prove a fact by Weems, showing Wylie’s knowledge, and if Weems is to be excluded because that fact transpired in a transaction between Weems and Wylie, under which the complainants set up no rights, but on the contrary repudiate, the death of a man would almost wipe out the evidence of his acts.

2. We think, too, that Weems’ evidence is material. The sole defense of the defendant is the statute of prescription. Under our law that cannot be relied on successfully if the possession be fraudulent, or if the color of title be fraudulent. This court held, in the case of McAmy vs. Higdon, 50 Georgia, 629, that one who buys land from a mere squatter, knowing that he is such, cannot rely upon a title so obtained as a. prescriptive title. Our Code, section 2679, provides that a possession, to be adverse, must not have originated in fraud; and again, section 2683, that there must be color of title, and that no prescription can be based on a color of title that is forged or fraudulent. We have held, in several cases, that constructive notice does not make a title fraudulent; that the law will not infer fraud in such cases from negligence; that the fraud contemplated must be some conscious, actual wrong, something which shows that the party charged was acting in bad faith, was doing what he must have known was wrong and unfair: McAmy vs. Higdon, 50 Georgia, 629; Smith vs. Wright, 43 Ibid., 291; Brown vs. Wells, 44 Ibid., 573. Under the testimony of Weems it appears that Wylie knew all about the trust deed — the right of the children — knew that Wingfield was the trustee and not Weems, and that Weems had no right to sell; at any rate, under his testimony, the jury might have so found. We are of the opinion that if this be so; if Wylie took Weems’ deed, and paid the Confederate money, knowing all the facts and intending to take the risk, hoping he would not be disturbed — trading on the power of Weems to control his wife and children; if he knew he was getting what Weems had no legal right to sell and put him in possession of, and was ready to use up the kernel and leave the children the husks; that this is evidence to go to the jury, on which it is competent for them to find this deed from Weems and the possession acquired under it fraudulent.

3. We do not say it was fraudulent, but that under Weems’ and the other testimony, the case was one for the jury. If the original deed, and the possession was fraudulent — and nothing was paid for the second deed — and the trustee got nothing, it would be only an additional fraud. All this, however, was for the jury. We express no opinion as to what the jury ought to find. We simply say that it would not, with Weems’ testimony in, be a case for non-suit: See the cases of Gray vs. O’Neal, 12 Georgia, 424. See, also, 17 Georgia, 574; 20 Ibid., 480; 35 Ibid., 132; 37 Ibid., 26; 26 Ibid., 617; 32 Ibid., 400.

These cases establish that if there be any evidence for the’ plaintiff, he has a right to go to the jury. The case of Tison vs. Yawn, 15 Georgia, goes very far.

Judgment reversed.