Yundt v. Davison , 1938 Ga. LEXIS 570 ( 1938 )

Atkinson, Presiding Justice.

On May 4, 1925, A. J. Boswell executed to R. E. Davison a security deed which was duly recorded. After such record Boswell executed a deed on December 30, 1927, conveying the land to George J. Yundt. The administrators of the estate of Davison procured judgment of foreclosure of the security deed on October 25, 1932, and caused execution issued thereon, to be levied on the land on October 9, 1935. Yundt interposed a statutory claim. On the trial of the case the claimant sought to establish title by prescription. The evidence showed, that, without actual notice of Davison’s deed to secure debt, the claimant for more than seven years had paid the taxes; that on one occasion he drove across the land and gathered certain botanical specimens; that he never fenced the land or any part of it, never cultivated any of it through a tenant or otherwise’, or did any other act to indicate actual possession. A verdict was returned, finding the property subject. The claimant’s motion for new trial was overruled, and he excepted. Held:

1. Although the plaintiffs in fi. fa. and the claimant claimed title under a common grantor, the record title of the plaintiffs on foreclosure of the senior duly recorded security deed was superior to the junior deed conveying the land to claimant.

2. The foundation of prescription is possession. Code, § 85-401. Possession to be the foundation of a prescription must be public, continuous, exclusive, and uninterrupted. § 85-402. The evidence disclosed no such actual possession as was necessary (Durham v. Holeman, 30 Ga. 619; McDonald v. Dabney, 161 Ga. 711, 714, 132 S. E. 547; McCook v. Crawford, 114 Ga. 337, 338, 40 S. E. 225; McCrea v. Georgia Power Co., 179 Ga. 1 (7), 16, 174 S. E. 798), and was insufficient to show a proscriptive title as against the plaintiffs in fi. fa.

No. 12216. May 12, 1938. J. S. Callaway and J. G. Fausl, for plaintiff in error. Miles W. Lewis, contra.

3. The court did not err in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur.