McLennan v. Graham

32 S.E. 118, 106 Ga. 211, 1898 Ga. LEXIS 62

• Court: Supreme Court of Georgia
• Decided: December 16, 1898
• Status: Published

Opinion

Cobb, J.

It appears from the record that the present case was tried as one in which both plaintiff and defendant derived title from a common grantor, who was the person who had conveyed the property to Mitchell Guerry. Without holding fhat this was the correct theory of the case, we deal with it'as presented. From this point the plaintiff’s chain of title consists of a deed from Aaron Graham, as administrator of Mitchell Guerry, to Samuel Graham, and a deed from Samuel Graham to William Graham, the plaintiff in the present case. The defendant relies upon a deed founded upon a sheriff’s sale of the property under an execution against Aaron Graham individually. There is evidence that Aaron Graham was in possession of the property, exercising acts of ownership over the same, but there is no evidence that he ever had title to the land. While his possession continued for a number of i years, it was, until February 7, 1893, the date of the deed from him as administrator to Samuel Graham, in his right as administrator; and even though it might be inferred that he remained in possession thereafter, such possession was not of sufficient duration, even if adverse, to constitute a prescriptive title. Upon the case thus made it is clear that ’William Graham, who claims under title derived through the administrator’s sale, has a superior right to the defendant, who claims under the sheriff’s deed founded upon an execution against a person who never had title of any charactei to the property. It is contended, however, that the plaintiff should have interposed a claim and not have allowed the property to be sold by the sheriff, and that his failure to interpose a claim when he knew that the levy had been made was such a fraud upon the defendant that the plaintiff would be now estopped from setting up his title against the alleged title of the defendant under the sheriff’s deed. In the case of Whittington v. Wright, 9 Ga. 23, it was held that the claim laws were cumulative only. Judge Lump-kin in the opinion uses this language: “Our claim laws are cumulative, permissive and not .mandatory. They do not take from the owners of property their right to assert their title by trover or ejectment or trespass against the sheriff, as at common law; and a sale by the sheriff can not divest the owner of his title, unless he does, or omits to do something, and thereby entraps the purchaser.” See also Cox v. Griffin, 17 Ga. 249; Bodega v. Perkerson, 60 Ga. 516. If William Graham was the owner of the property, his failure to file a claim, notwithstanding he may have been apprised of the fact of the levy and of the day fixed for the sale, would not interfere with his right to assert his title against the purchaser at the sale, unless he did .something that would mislead the purchaser and entrap him into buying under the belief that the property sold was really the property of the defendant in execution. There is nothing in this case which will bring the plaintiff within the rule laid down in Civil Code, § 3823, where it is declared that “one who silently stands by and permits another to purchase his property without disclosing his title is guilty of such a fraud as es-tops him from subsequently setting up such title against the purchaser.” There is no evidence of any statement by William Graham that would mislead the defendant, nor is there >any evidence from which a jury would be authorized to find that he had been guilty of conduct which would be calculated to deceive the defendant in any way and create the impression that he was not claiming the property in his own right, but was acquiescing in its being treated as the property of Aaron Graham. The plaintiff not being precluded, by the failure to file a claim, from, setting up his title against the defendant, and having been guilty of nothing which would amount to a fraud upon the defendant, and thereby estop him from claiming tile property, the judge did not err In directing the jury to find In his favor.

Judgment affirmed.

All the Justices concurring.