Citizens & Contractors Bank v. Johnson , 179 Ga. 495 ( 1934 )

Russell, C. J.

In an action of ejectment instituted on April 5, 1929, the plaintiff, by amendment of December 5, 1932, laid a demise in the name of Mrs. Bessie Glenn Johnson. The defendant claimed under a deed executed by the marshal of the City of Lithonia in pursuance of a sale of the property for municipal taxes, the sale having been conducted in Decatur, the county seat of the county; also upon prescription by seven years adverse possession under the tax deed as color of title. There was evidence tending to show adverse possession in good faith under the tax deed for more than seven years prior to December 5, 1932. Held:

1. Whether or not the marshal’s deed was in all respects legal and binding, it was sufficient color of title upon which to base a prescription.

2. The new demise alleged a distinct cause of action commencing from the date of the amendment; and there being evidence tending to show that the defendant had been in adverse possession of the land under color of title for more than seven years prior to the allowance of the amendment, and to support a prescriptive title in the defendant (Jones v. Johnson, 81 Ga. 293, 6 S. E. 181), the judge erred in directing a verdict for the plaintiff.

No. 9881. September 19, 1934.

Judgment reversed.

All the Justices concur, except Sutoheson,'J., disqualified. G. N. Davie and J. F. Kemp, for plaintiff in error. B. H. Burgess, ScoU Gaudier, and Mayson & Johnson, contra.