Opinion
13437.
SEPTEMBER 25, 1940.
Ejectment. Before Judge Davis. Clayton superior court. April 12, 1940.
A. S. Clay, Mitchell Mitchell, and Hirsch, Smith Kilpatrick, for plaintiff.
Virlyn B. Moore Jr., and Crenshaw, Hansell Gunby, for defendants.
A devise of land under a duly recorded will is color of title, and adverse possession thereunder for a period of seven years ripens into a prescriptive title that is superior to the title of a grantee in a security deed executed by the testator.
No. 13437. SEPTEMBER 25, 1940.
Ida L. Blalock brought suit in ejectment against Mrs. Cora Estes Sims, R. L. Webb, R. L. Webb Jr., Martha Estes Sims Webb, and the executors of the estate of W. T. Sims, seeking to recover two and a half acres of land in the City of Jonesboro, Clayton County, Georgia, known as the home place of W. T. Sims. The action was based on a deed to secure a debt, dated January 4, 1897. The defendant executors answered, alleging that on November 4, 1913, after due advertisement, all of the real estate belonging to the estate of W. T. Sims, deceased, was sold for the purpose of paying the debts of the estate, except the property herein sued for, which was devised to the wife and children of W. T. Sims, that the devise had been assented to by the executors, and that these defendants have never had possession or exercised any right of ownership over said property. The other defendants by answer denied the plaintiff's claim of title or right of possession, claiming the property involved by virtue of more than seven years adverse possession thereof under the will, as color of title; also claiming title by prescription by virtue of their adverse possession for more than twenty years, and alleging improvements in the amount of $10,000. On the trial the plaintiff introduced in evidence a security deed from W. T. Sims, dated January 4, 1897, together with the notes of even date thereby secured amounting in the principal sum to $864. The defendants introduced in evidence the will of W. T. Sims, which contained an item devising to the defendants the property here involved. The evidence showed that the will was duly probated and recorded, that the executors assented to the devise immediately after the death of the testator in 1912, and that the legatees took possession of the land and have remained in continuous, open, adverse possession thereof, paying the taxes and making valuable improvements thereon. A verdict in favor of the defendants was directed. A new trial was denied, and the plaintiff excepted.
A controlling question presented by the record is whether or not the devise in the will constitutes color of title which will ripen by prescription when adverse possession has been held thereunder for the statutory period of seven years. Code, § 85-407. A solution of this question involves in the present case a determination of the incidental question as to whether the legatees can hold adversely to the grantee in a security deed previously executed by their testator. It is obvious that if the devise is color of title, bona fide possession thereunder for a period of seven years will ripen into perfect title as against every one. The very purpose of the law in providing for prescriptive title is to extinguish the claims of all others in the land. If such adverse possession ripened into title that was good only as against those having no claim to the land, the law would be useless and could serve no purpose. The manifest purpose of the law is to establish title that is good against all legal and legitimate rights and title formerly held by others, but forfeited by reason of adverse possession. Whether such rights be founded upon a mere lien such as a mortgage, upon title for a limited purpose such as a security deed, or upon an absolute and unconditional title, makes no difference. This is not an unfair or harsh rule of law. Those having an interest are given seven years in which to act to protect their interest. The statute puts them on notice in advance of the result if they fail to act. Thus it is seen that where title is acquired by prescription, those having an interest which is forfeited have virtually sanctioned the forfeiture and have aided in the establishment of prescriptive title by their inaction. In Harriss v. Howard, 126 Ga. 325 (2) ( 55 S.E. 59), this court said: "A devise of land under a will duly recorded may give color of title." Then, in Caraker v. Brown, 152 Ga. 677 ( 111 S.E. 51), this court held that a devise under a will was color of title, and that the legatees thereunder could hold adversely to the grantee of their testator. This court in that case went further than the facts in the present case require us to go. It was there held that the executor, the legatee, and the grantee of the legatee could all hold adversely to a grantee of the testator; and it was held that the possession of the executor could be tacked to that of the vendee of the devisee, to make out the necessary period of prescription. It follows that the defendant legatee and heirs of legatees in the present case, who the evidence shows knew nothing of the existence of the plaintiff's claim until the present suit was filed, and who have held possession of the premises involved under the devise for more than seven years, acquired title by prescription, and that the evidence demanded the verdict in their favor.
Judgment affirmed. All the Justices concur.