Janes v. Patterson , 62 Ga. 527 ( 1879 )

Jackson, Justice.

1. The four years’ statute is relied upon to free this land from the lien of the judgment. The judgment is for purchase money, a part only having been paid, and the defendant held a bond for titles only, and sold and made a deed to claimant, or rather to one under whom claimant holds, whilst he held only the bond for titles. His sale to claimant, therefore, conveyed only his title, which was the right to a perfect title, or to a deed, when he paid the balance. The balance is not yet paid; therefore the claimant, not having such title from the defendant in judgment as to discharge the land from its lien for the part yet unpaid, is not protected by four years’ possession. If defendant had held a deed from plaintiff to the entire land, and had sold to claimant, and made him a deed, and claimant had held bona fidefor four years, then claimant would have been protected, and the land would have been discharged from the lien of the judgment, even for purchase money, under the Code, §3583. But no deed ever was made in this case, except for' the purpose of selling this land for purchase money, under §3654 of the Code, and four years’ adverse possession was-not held by claimant after that deed to defendant in judgment.

2. But the bond for titles is good color of title to support the title by prescription which arises after seven years’ possession ; or, in other words, seven years’ bona fide adverse possession under a deed from a party who had possession and bond for titles, works a good prescriptive title in the possessor. This claimant and those under whom he holds have bona fide held adverse possession of this land for more than seven years, so far as this record shows the facts, and therefore he has a prescriptive statutory title superior to the legal title which the plaintiff had retained as a security for his purchase money.

3. How far the recital in a deed of the payment of purchase money will go to show the-actual payment thereof, is a question not free from uncertainty and doubt from the authorities; but we are clear that such recital will raise the presumption of actual payment after a great lapse of time since the deed was executed, and possession thereunder continuously for such time. For myself I would say that such recital is always prima facie evidence of actual payment,, subject, of course, to be rebutted. I am authorized by my brethren, however, to announce the principle only to the extent declared in the third head-note.

4. It is not an open question with us that the actual possessor of one part of a tract of land, consisting of several lots, under a recorded deed, will be protected in his prescriptive title to the boundary described in his deed. His possessio pedis of part of the entire tract, though but one lot, will constructively extend to all the tract set out in his recorded deed, though that embrace other unoccupied lots.

The Code, §2681, would seem to settle the point, and the-case of Parker vs. Jones et al., 57 Ga., 504, founded on that section, further confirms the view now entertained and expressed by the entire court.- If the deed were unrecorded, the case would be different, because nobody could ascertain the extent of the claim. The record hero shows-that some of the deeds under which claimant held were recorded, and it does not appear affirmatively that any were not recorded. The plaintiff -in error must affirmatively show error.

5. So that the claimant’s title is good to all this land by prescription, he having had some of it in actual possession, and the balance in constructive possession to the extent of the bonndary described in his recorded papers — title—embracing his one tract; and this being so, inaccuracies of the court make no difference; the verdict is right, and should stand, especially after such a great lapse of time and failure so long to press the judgment.

Judgment affirmed.