Rock Run Iron Co. v. Heath , 155 Ga. 95 ( 1923 )

Atkinson, J.

1. On the trial of a contest between rival claimants to have title to certain land declared and registered under the provisions of the land-registration act (Acts 1917, p. 108), the examiner appointed thereunder decided that certain deeds relied upon by one of the claimants as color of title on which to base a prescription were forgeries. On the trial before the jury of an exception of fact to such finding, there being evidence tending to show that persons whose names appeared as official witnesses on the purported deeds did not hold commissions as such officers at the time the deeds purported to have been executed, the judge instructed the jury as follows: “ If you should find from the evidence that the party witnessed these deeds as a justice of the peace or as a notary public, or however they may be witnessed officially, if that official, at the time, did not hold such a position officially and was not commissioned, and had no authority to officially witness the deeds and did so in an official capacity, you will be authorized to find such a deed a forgery, and in that way to sustain the finding of the examiner in this case.” Reid: The instruction proceeds on the assumption that the deed was actually executed by the maker., If so executed, it would not be converted into a forgery merely because a witness attesting it offieally was not in commission at the time of the execution. The charge was not a correct statement of the rule of presumption as to forgeries, as expressed in Parker v. Waycross & Florida Ry. Co., 81 Ga. 387 (8 S. E. 871); Powell on Actions for Land, 262, § 213. The error in the charge was sufficient to require the grant of a new trial to the objector who introduced the deeds as color of title.

2. Actual adverse possession of lands by itself for twenty years will give good title by prescription, Civil Code (1910), § 4168. But such prescriptive title will not include any part of a given tract of land beyond the limits of the actual possession. Baker v. White, 136 Ga. 541 (71 S. E. 871). Adverse possession of lands under written evidence of title for seven years will also give a title by perseription. Civil Code (1910), § 4169. A prescriptive title under this section cannot be founded on written evidence of title executed less than seven years prior to commencement of the action, even though the pretended prescriber and those under whom he claims may have been in adverse possession for the full prescriptive period.

3. Applying the principles stated in the preceding note, the evidence required a finding sustaining the exception of fact filed by the objector to the report of the examiner, which found that the applicant had established a prescriptive title to certain of the lots and was entitled to have them registered in his name.

4. Except as indicated, above, none of the other assignments of error are meritorious or of such character as to require elaboration.

Judgment reversed.

All the Justices concur. C. I. Carey, for plaintiff in error. James Maddox, contra.