Prater v. Cox

Warner, Chief Justice.

This was an action of ejectment brought by the plaintiff against the defendants to recover the possession of a tract of land therein described. . On'the trial of the case the jury, under the charge of the court, found a verdict in favor of the defendants. A motion was made for a new trial on various grounds, one of which was, that the verdict was contrary to the charge of the court and therefore contrary to law, which was overruled and the plaintiff excepted.

It appears from the evidence in the record, that Prater, the plaintiff’s lessor, purchased the land in dispute at sheriff’s sale under an execution in his own favor against Hiram Cox, Yarnell, and Kincannon, which issued on a judgment dated 17th December, 1868. The defendant, J. P. Cox, purchased the land in dispute from Yarnell, one of the defendants in fi. fa., through his father Hiram Cox, another defendant in fi.fa., who acted as his agent in making the purchase of the land in April, 1873, went into the possession thereof, and claimed to have been in possession of the land for four years as a bona fide purchaser for a valuable consideration, as provided by the 3583rd section of the Code, .prior to the levy of Prater’s fi. fa. thereon. The court charged the jury to the effect that if they found from the evidence that Hiram Cox purchased the land as agent for his son J. P. Cox, and he had notice of the existence of the judgment at the time of the purchase, that would be notice to his principal J. P. Cox. On the hearing of the motion for a new trial, the court admitted that the finding of the jury was contrary to its charge as herein-before stated, but upon reflection had come to the conclusion that its charge was erroneous ; that notice to the agent was only const/ructwe notice to his principal, whereas the law required that he should have had actual notice of the existence of the judgment, and refused the new trial for that reason, and the question is whether the charge was right or erroneous.

The 2200th section of the Code declares that notice to the agent of any matter connected with his agency is notice to the principal. This we understand to mean actual notice ; that is to say, if the agent had actual notice the principal had actual notice. See 55 Ga., 438. There can be no doubt from the evidence in the record that Hiram Cox, who purchased the laudas agent for his son, J. P. Cox, had notice of the judgment lien upon it at the time of the purchase.

But it is said that notice to the agent of J. P. Cox was not sufficient to affect his conscience with moral fraud, as heretofore ruled by this court in relation to a prescriptive title to land, under the provisions of the 2683rd section of the Code. That section requires that the adverse possession of land, in order to give a good prescriptive title, must be under written evidence of title for seven years. But if such written title be forged or fraudulent, and notice thereof be brought home to the claimant before or at the time of the commencement of his possession, no prescription can be based thereon. It is under this section of the Code that this court has held that notice of the forged or fraudulent written title must be such as to affect the conscience of the claimant. Under the 3583d section all the purchaser has to show is that he is a bona fide purchaser of the land for a valuable consideration and has been in possession of it for four years, then he will hold it discharged from the lien of any judgment against the person from whom he purchased. The statute does not require that the purchaser shall be in possession of the land for four years under written evidence of title as in case of a prescriptive title for seven years. When the purchaser has notice of the lien of a judgment at the time of his purchase, the presumption is that he purchases the land subject to that lien and assumes the risk. There is not -necessarily any fraud in his purchase ; all that can be said is that the statute will not run in his favor when he purchased with notice of the judgment, and why should it ? Perhaps he paid that much less for the land, but whether he did or not that was his own lookout. In order to be pi’otected under the provisions of §3583 of the Code the purchaser must purchase the land without notice of the judgment at the time of his purchase, have paid a valuable consideration for it, and been in possession thereof for four years. 56 Ga., 617. In the view we have taken of this case from the evidence disclosed in the record, the charge of the court to the jury was right, and it erred in overruling the plaintiff’s motion for a new trial.

Let the judgment of the court below be reversed.