Wingfield v. Virgin

• Decision Date: 31 January 1874
• Citation: 51 Ga. 139
• Court: Georgia Supreme Court
• Parties: John T. WINGFIELD, administrator, et al., plaintiffs in error. v. Belle Virgin et al., defendants in error.

51 Ga. 139

John T. WINGFIELD, administrator, et al., plaintiffs in error. v. Belle Virgin et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Prescription. Statute of limitations. Trusts. Infants. Before Judge Pottle. Wilkes Superior Court. December Adjourned Term, 1873.

For the facts of this case, see the decision.

R. Toombs, for plaintiffs in error.

W. M. & M. P. Reese, for defendants.

Warner, Chief Justice.

In November, 1861, John B. Weems, who had intermarried with Elizabeth Wingfield, for the purpose of protecting his wife's equity in her share of her deceased father's estate, jointly with her, executed a deed of trust conveying to S. B. Wingfield, her brother, all the property to which she was entitled as a distributee of her father's estate, upon certain declared trusts expressed in said deed, one of which was that said trustee was to hold the said property for the sole and separate use of his said wife and children, born and to be born, the income of said property to be applied to the support, maintenance, education and use of the family, and not to be subject to the debts of said Weems, and at the death of himself and wife, or the sur-vivor of them, the corpus of the property, *with its profits, to be divided amongst their children. This deed was recorded within three months after its execution. A part of the property assigned to Mrs. Weems as a part of her father's estate, and conveyed to the trustee, was a house andlot in the town of Washington, which is now the subject matter of controversy. Wingfield, the trustee, never took possession of the house and lot, but it was taken possession of by Weems, managed and controlled by him, and whilst in the possession thereof, and acting as trustee for his wife and children, did, on the 14th day of October, 1863, sell and convey the said house and lot to one Nicholas Wylie for the sum of $17,500 00, signing the deed of conveyance as trustee for his wife, and the said Wylie went into the possession of the same under said purchase, and continued in possession thereof up to the time of his death, and by his legal representative since his death. On the 14th day of November, 1864, Wingfield, the trustee named in the original deed of trust, and Mrs. Weems, executed another deed to Wylie, conveying the premises to him for the consideration of $17,500 00, as expressed in the deed, but, in fact, no money was paid when the last deed was executed. The complainants, the children of Weems and wife, all being minors, filed their bill against the defendants to have the trust re-established, which they allege has been destroyed, the aforesaid deeds canceled, and an account taken of the rents and profits of the property, a new trustee appointed, and the trust executed in conformity with the terms of the original trust deed. Wylie\'s legal representative, one of the defendants, claimed a title to the house and lot by prescription, under the statute. On the trial of the case, the jury, under the charge of the court, found a verdict for the complainants. A motion was made for a new trial, which was overruled, and the defendant excepted.

1. Did Wylie, in his lifetime, acquire a good prescriptive title to the house and lot as against the complainants? What constitutes a title by prescription? Title by prescription is the right which a possessor acquires to property by reason of the continuance of his possession for a period fixed by the *law. Possession, to be the foundation of a prescription, must be in the right of the possessor and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted and peaceable, and be accompanied by a claim of right. Adverse possession of lands, under written evidence of title for seven years, shall give good title by prescription. 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: Code, 2678, 2679, 2680. There is no dispute as to the fact that Wylie was in possession of the house and lot for more than seven years under the first deed executed by Weems, as trustee for his wife, before the filing of complainant's bill, and it must be admitted, from the...