Mohr & Sons v. Dubberly , 165 Ga. 309 ( 1927 )

Russell, C. J.

(After stating the foregoing facts.) In determining the correctness of the ruling of the trial court it becomes necessary to consider the evidence in the case. The uncontradicted evidence adduced clearly shows that the defendant had no actual notice of any want of title in his vendor at the time of his purchase. However, the plaintiff contends that the recital in the deed from the Glennville Investment Company to R. C. Dubberly, defendant's grantor, was sufficient to convey such notice of the want of. title in his vendor to the defendant as to make his purchase with such notice a fraud which would prevent the defendant from acquiring title by prescription. The recital relied upon is contained in the deed by which the Glennville Investment Company reconveyed to R. O. Dubberly 71.9 acres of the tract (originally containing 89 acres) which had been conveyed to the Investment Company by R. C. Dubberly, and is as follows: “there being excepted in this reconveyance and not included herein the rights, titles, and interest of 121 lot-owners, which said lots are located upon said land, and heretofore sold by the party of the first part [Glennville Investment Company] to various individuals, as per the records of said party of the first part and the clerk of tthe superior court of said county.” This deed was duly recorded. However, under the facts disclosed by the record, this recital would not afford the defendant even constructive notice that his grantor, R. C. Dubberly, had no title to the lot in dispute. At the lot sale in 1908 the Investment Company sold the lot in dispute to J. S. Herrin. So far as appears from the record, this deed was never recorded. Therefore, even if Ií. C. Dubberly had made due examination of the records of the clerk of the superior court, he could not have discovered that the lot in dispute had been sold by the Investment Company and was one of the 121 lots mentioned in the recital as having been sold. The deed from Herrin to the plaintiff was recorded; but even if constructive notice would prevent the defendant from acquiring a prescriptive title, the record of the latter deed would not furnish such notice, because there was no record disclosing a conveyance of the lot in question out of the Investment Company; and therefore, even had the defendant examined the record, he would have been justified in assuming that none of the lots previously sold (referred to in the recital) were included in the ten-acre tract he intended to purchase. Furthermore, under the Civil Code (1910), § 4177, “Fraud which will prevent possession of property from being the foundation of prescription must be actual or positive fraud,” and actual fraud “can not be founded on presumptive notice, on that sort of notice which is based upon record, or which is presumed from want of diligence.” Garrett v. Adrain, 44 Ga. 274, 276, quoted and approved in Baxter v. Phillips, 150 Ga. 498, 500 (104 S. E. 196). We hold, therefore, that the recital contained in the deed from the Investment Company to E. C. Dubberly did not convey to the defendant such notice of the title of the plaintiff as to make his purchase and entry thereunder fraudulent or prevent his possession from being the foundation of prescription. The evidence that the defendant had been in adverse possession of the lot in question for more than seven years is undisputed.

The second contention of the plaintiff is that the defendant was bound by the recital in his muniment of title, and is thereby estopped to deny the title of the plaintiff. This contention is unsound, for at least two reasons: First, as already stated, under the terms of the recital, as the deed from the Investment Company to Herrin conveying the lot in dispute was not recorded (and thus one seeking to ascertain what lots had been sold could not discover from the record that the lot in dispute was included within the terms of the provision), the recital was not even constructive notice to the defendant of the plaintiff’s title. Second, the motion of the defendant for a directed verdict was based upon his proof of adverse possession of the lot in question for more than seven years under color of title. The authorities cited by the plaintiff in error do establish the proposition that parties to a deed and those claiming under them are bound by recitals contained therein and are estopped to deny them. This principle, however, has no application where the statute is pleaded and possession under color of title is relied on. In such an instance, from the nature of the case, the defendant does not claim under a chain of title, for under the law of prescription he does not rely upon his title, but upon his possession. Indeed, it may be said that a defendant who claims land by virtue of seven years adverse possession- thereof under evidence of title has no muniment other than his color of title.

Applying the foregoing rulings to the evidence in this case, a verdict for the defendant was demanded, and the court did not err in directing the jury to return a verdict in his favor. It is unnecessary to discuss the validity of the title acquired by E. C. Dubberly through his purchase of the lot in dispute when sold under a tax fi. fa. in 1915, as this is not material to a' proper decision of the case. Judgment affirmed.

All the Justices concur.