Hardin v. Council

• Court: Georgia Supreme Court
• Writing for the Court: BELL, Chief Justice.
• Citation: Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (Ga. 1946)
• Decision Date: 14 May 1946
• Docket Number: 15374.
• Parties: HARDIN et al. v. COUNCIL et al.

38 S.E.2d 549

200 Ga. 822

HARDIN et al. v. COUNCIL et al.

No. 15374.

Supreme Court of Georgia

May 14, 1946

Rehearing Denied June 6, 1946.

Syllabus by the Court.

1. Where the other elements of prescription are present, adverse possession of lands, commenced in good faith and continued for seven years, under written evidence of title, will give title by prescription.

(a) 'There may be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession; in any of which events the cotenant may sue at law for his possession.' Code, § 85-1005.

(b) A party claiming prescriptive title as against a cotenant has the burden of showing not only the usual elements of prescription, but in addition thereto, at least one of the conditions stated in the foregoing section as to cotenants.

(c) Where land was owned by two persons as tenants in common, and one of them took a deed from a third person purporting to convey to himself the whole of the common property, and had such deed recorded, and where, under the facts and circumstances, the conveyance amounted to nothing more as between the cotenants than the removal of an encumbrance for which they were both liable, possession of the land by the grantee, under such deed, would not (assuming good faith) constitute such an ouster of the other cotenant as would lay a foundation for the commencement of adverse possession against him, unless it was accompanied by a hostile claim of which he had actual notice, or by unequivocal acts of possession so visible, hostile, exclusive, and notorious that such notice may be fairly presumed.

(d) In the instant case, the plaintiff relied solely upon a claim of ouster as opening her right to assert adverse possession. The allegations were insufficient to show the ouster claimed, and the petition was, therefore, subject to demurrer on the ground that it did not state a cause of action.

2. In order for a widow to be the personal representative of her deceased husband, who died intestate leaving no lineal descendants, in the sense that she may sue as the representative of the estate to cancel a deed, it is essential that at the time the suit is instituted there be no outstanding debts against the estate. In the instant case the petition affirmatively showed that there was such a debt and there being no allegation that there was no administration on the estate, or that there was an administrator and that he assented to the suit, the petition was subject to general demurrer for the additional reason that it showed upon its face that the plaintiff was not entitled, as widow and sole heir at law, to maintain the action.

In June, 1945, Mrs. John M. Council filed a suit in equity in the superior court of Sumter County, against J. C. Beasley as superintendent of banks, H. H. Hardin, as transferee, and other persons, praying for injunction, cancellation, and other relief. The petition was based mainly upon alleged prescriptive title claimed by the plaintiff with respect to an equitable interest in realty situated in Sumter County, which interest the superintendent of banks of Georgia was advertising for sale under a security deed that was made in 1928 by Harris S. Council, then a cotenant of the plaintiff's husband, since deceased, to Planters Bank of Americus, which later failed and was placed in the hands of the superintendent of banks for liquidation. A demurrer to the petition as amended was overruled, and the demurrants excepted. The petition as amended alleged substantially the following facts: On February 5, 1914, M. B. Council executed a deed, conveying to John M. Council and Harris S. Council the fee-simple title to a described tract of land in Sumter County, consisting of 650 acres, more or less, which deed was duly recorded in the deed records of Sumter County.

On February 24, 1925, the said John M. Council and Harris S. Council conveyed said land to Federal Land Bank of Columbia, South Carolina, by a security deed, for the purpose of securing a loan of $15,000, which deed was also duly recorded.

On January 22, 1930, John M. Council and Harris S. Council conveyed the said property to Growers Finance Corporation, for the purpose of securing an alleged debt of $7500, as evidenced by a note of the grantors, the deed as to said land being made subject only to the security deed previously made to the Federal Land Bank, as described above.

On January 17, 1933, Growers Finance Corporation, acting under a power of sale contained in its security deed, sold the propety therein described, and itself became the purchaser, for the sum of $100, and as attorney in fact for the debtors made to itself a deed accordingly, subject to the above described security deed to Federal Land Bank. The deed so made by Growers Finance Corporation to itself was duly recorded on February 14, 1933. On the same day, to wit, January 17, 1933, Growers Finance Corporation, for a recited consideration of $100, sold and conveyed the same property to John M. Council, by a deed, which was in like manner duly recorded on February 14, 1933, and which also contained a recital that it was made subject to the security deed of Federal Land Bank.

'7. Petitioner shows that John M. Council died intestate on July 28, 1937, leaving petitioner as his sole surviving heir at law; that from January 17, 1933, petitioner and her predecessor in title, John M. Council, have been in open, public, notorious, continuance [?], exclusive, uninterrupted, peaceable, and adverse possession of said described lands, under and by virtue of the deed from Growers Finance Corporation referred to in paragraph six hereof; that such possession has been evidenced by the annual cultivation of the usual crops thereon, and by the use and occupation thereof, and by otherwise exercising full and complete dominion over the same. Petitioner further shows that since January 17, 1933, she and her predecessor in title have paid the taxes on said lands, and have paid the annual installment due the Federal Land Bank on the loan held by said bank on said land and referred to in paragraph three hereof, and have spent large sums for improvements, all of which have been in good faith.

'8. Petitioner alleges that by reason of the foregoing facts she is the owner in fee simple of said described lands, subject only to the outstanding loan in favor of the Federal Land Bank, of which loan there is a large amount still unpaid. Petitioner shows in this connection that the allegations herein with reference to the title and ownership of said lands applies to all of said tract of land described in paragraph two hereof, except ninety acres off of lot No. 101, which was acquired by Sumter County, Georgia, in condemnation proceedings on or about December 31, 1943.'

The plaintiff shows that notwithstanding her title and ownership of said described property, there is now running in the Americus Times-Recorder, an advertisement signed 'Harris S. Council, by J. C. Beasley, superintendent of banks, for the use of H. H. Hardin,' which advertisement offers for sale a one-half undivided interest in her property. A copy of this advertisement was attached as an exhibit to the petition, and contained the following recitals:

On November 1, 1928, Harris S. Council conveyed a one-half undivided interest in the tract of land in question to Planters Bank of Americus to secure a stated indebtedness (about $14,000), by a security deed which was recorded on November 28, 1928; that Planters Bank later failed and was taken over by the banking department of the State of Georgia for the purpose of liquidation; and that the notes secured by such deed were endorsed by the Planters Bank and were delivered by the superintendent of banks to H. H. Hardin, who is now the present owner and holder of said notes and security deed, though the legal title is in the superintendent of banks; that the said notes have been due since November 15, 1929, and have not been paid; that the property will be sold on the first Tuesday in July, 1945, as the property of Harris S. Council, by virtue of a power of sale contained in such security deed, and that the superintendent of banks will make title to the purchaser.

There was also attached to the petition as amended a copy of the deed from Harris S. Council to Planters Bank of Americus, purporting to convey the one-half undivided interest of the grantor in the described land, subject to the security deed to Federal Land Bank, as above mentioned. This deed by Harris S. Council is the deed against which the plaintiff asserts title by prescription, in virtue of the deed from Growers Finance Corporation to her husband, dated January 17, 1933, and purporting to convey the entire equity in the property, subject to the security deed to Federal Land Bank as stated above, which deed from Growers Finance Corporation to John M. Council is claimed as color of title for the purpose of such alleged title by prescription.

Continuing, the petition alleged: H. H. Hardin, one of the defendants, is not a bona fide holde for value of the notes referred to in the security deed under which said advertisement is being run; said notes purporting to be signed by the defendant Harris S. Council are without consideration and are null and void, and the security deed given to Planters Bank referred to in said advertisement is likewise null and void, in that it is wholly without consideration, and the title to said property did not and could not pass under said void security deed, and no part of the title to said property is now vested in the superintendent of banks.

'11. Petitioner shows that she and her predecessor in title have been in possession of said land, under written evidence of...