Danielly v. Lowe

130 S.E. 687, 161 Ga. 279, 1925 Ga. LEXIS 342

• Court: Supreme Court of Georgia
• Decided: November 14, 1925
• Docket: No. 4939
• Status: Published

Opinion

Gilbert, J.

1. “A prescription does not run against an unrepresented estate until representation, provided the lapse does not exceed five years.” Civil Code (1910), § 4175. “If the estate remains unrepresented for more than five years, no deduction at all from the adverse possessor’s term will be allowed in favor of the personal representative.” Powell’s Actions for Land, 448; Brown v. Caraker, 147 Ga. 498 (4) (94 S. E. 759). In this case there was no representation on the estate for more than twenty-six years.

2. Under the undisputed facts, the defendant and his predecessor in possession of the land sued for had been in possession thereof openly, adversely, and under a claim of right for more than twenty years. There being nothing to negative good faith in such possession, the same will be presumed. Hammond v. Crosby, 68 Ga. 767 (4).

3. “When an adverse possessor has held for the requisite period and his prescriptive title ripens, it extinguishes all other inconsistent titles and itself becomes the true title.” Powell on Actions for Land, 459, § 349. Under the evidence, prescription had ripened into a good title in the predecessor of the defendant prior to the conveyance by the former to the latter, and extinguished all claims of creditors of Mrs. Danielly as well as her administrator.

3. It follows from the above that the verdict in favor of the plaintiff must be set aside. Judgment reversed.

'All the Justices concur. C. L. Shepard and LeSueur & LeSueur, for plaintiff in error. L. D. Moore, contra.