Bagley v. Kennedy

8 S.E. 742, 81 Ga. 721

• Court: Supreme Court of Georgia
• Decided: February 11, 1889
• Status: Published

Opinion

Bleckley, Chief Justice.

The only demise which, under the evidence, has any significance, is the third, which was from, the three ■children of Dorcas Iiardin by her husband, James Hardin. The title of these childrenrestedupon a document ■executed in April, 1849, by the heirs and distributees of - the estate of Robert Harkness, one of whom was Dorcas. Hardin. This document settled the rights of the heirs •touching the premises now in-,dispute, and provided that the same should belong to Dorcas Hardin during her life, and be divided at her death equally between her children by James Hardin. By the same instrument, Robert W. M. Harkness was appointed trustee to take charge ■of the property for said Dorcas, - and manage the same ■.for her use so long as she remained a married womanv .Afterwards, whilst holding as tenant for life, she conveyed the premises in fee simple, for a valuable consideration, and under that conveyance as a subsequent pur-' ■chaser, Kennedy, the defendant, holds. He and his predecessors in title have had continuous adverse possession for a length of time sufficient to establish title by prescription as against Dorcas Hardin. She died in 1884, and this action was brought in 1887. The only question-' is as to the establishment of a prescriptive title in favor of Kennedy against the plaintiffs, the children of Dorcas Hardin.

1. The plaintiffs had no cause of action during the life of their mother, and so were in no default for not bringing suit. They had seven years from the death of their mother, in 1884, within which to commence their action, • and they waited much less than seven years. It admits of no doubt that one who holds land. under a tenant for life, acquires no title by prescription as against those entitled in remainder, unless the possession is continued for seven years after the right to enter accrues to the remaindermen.

2. The fact that there was a trustee appointed to hold during the coverture of the tenant for life, has no relevancy to the question of barring these remaindermen. The trustee did not hold for the remaindermen, and according to the cases cited in East Rome Town Company vs. Cothran, ante, p. 359, did not represent them; and his default, if any, in omitting to bring suit, could not operate in any manner to their prejudice. ,,

The court erred in not granting a new trial.

Judgment reversed.