Caraker v. Brown , 152 Ga. 677 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1. None of the headnotes require elaboration, except the fourth, eighth, and ninth grounds.

2. The court construed the disclaimer of title by Hamilton Brown Sr. to apply to lands embracing the premises in dispute. The court instructed the jury that under this disclaimer Brown and those claiming under him would be estopped to assert title against one who acquired title to these premises on the strength of his disclaimer. In this disclaimer Brown, who had undertaken to take out a homestead in lands embracing the premises in dispute, alleged that he was due W. G. Lanterman the purchase-money of these lands, and had given a mortgage on a certain island prior to the homestead act of 1868, to secure the payment thereof. In view of these facts he declared he laid no claim to this propert)'. This disclaimer was under seal, and attested by two witnesses; and was attached to the deed by which Lanterman conveyed this property, for a valuable consideration, to Samuel Walker. Evidently, Brown knew that he could not hold the lands embraced in his homestead against the claim of Lanterman for the purchase-money thereof; and for this reason made this solemn disclaimer of title thereto.

One who silently stands by and permits another to purchase his property without disclosing his title is estopped from subsequently setting up such title against the purchaser. Civil Code, § 4419. His heirs would likewise be estopped. If a person and his heirs can be estopped from asserting title to land under the above circumstances, he and his heirs would certainly be estopped from asserting title thereto when he solemnly enters into a written disclaimer of title upon the strength of which a purchaser buys. This disclaimer of title is tantamount to Brown’s joining in the deed from Lanterman to Walker. So the court did not err in charging the jury that Brown and his heirs were estopped from asserting title to these lands, after such solemn disclaimer, against one who purchased for value from Lanterman. •

3. The court charged the jury that the muniments of title under which the plaintiff claimed were sufficient to convey the title to the premises in dispute from the common grantor to the plaintiff’s intestate; and this charge is complained of. Both the plaintiff and the defendant claimed under W. G. Lanterman. The plaintiff claimed under mesne conveyances from W. G. Lanterman into Katherine Brown. The first deed under which the plaintiff claimed, being one from W. G. Lanterman to Samuel Walker, was made subsequently to a deed from Lanterman to Hamilton Brown Sr. Whether this charge was correct or not depends upon the force and effect of the disclaimer made by Hamilton Brown Sr., hereinbefore referred to. In essence and effect this disclaimer, made under seal, and attached to the deed from Lanterman to Walker, has the same force and effect as if Brown had joined in the deed from Lanterman to Walker. In this disclaimer Brown admitted that he had purchased the premises in dispute from Lanterman, and had not paid him the purchase-money thereof. Although.Brown had undertaken to have these premises set aside, with other lands, as a homestead, the homestead would not be good against Lanterman’s claim for the purchase-money thereof. Realizing this, Brown disclaimed title thereto for the evident purpose of enabling Lanterman to convey the land directly to Walker; and this amounts to Brown’s so joining in this conveyance as to pass to the vendee of Lanterman the title to the premises in dispute. It may be said that this disclaimer amounted to an estoppel only, and did not convey title. Thornton v. Ferguson, 133 Ga. 825 (61 S. E. 97, 134 Am. St. R. 226); Coursey v. Coursey, 141 Ga. 65, 68 (80 S. E. 462). No prescribed form is essential to the validity of a deed to lands. If sufficient in itself to make known the transaction between the parties, no want of form will invalidate it. Civil Code, § 4182. Very informal instruments have been held sufficient to pass title. Horton v. Murden, 117 Ga. 12 (43 S. E. 786), and cases cited. When Brown executed this disclaimer and it was attached to the deed from Lanterman to Walker, it was, in effect, the same as if Brown had joined in this conveyance, and was effectual to convey Brown’s title to the premises in dispute to Walker, under whom Katherine Brown claimed. So we rule that the court did not err in this charge.

4. The court was requested to charge the jury that the possession of the premises in dispute by the executor of Brown could be tacked to the subsequent possession of Frank Brown, to whom the premises in dispute were devised under the will of Brown, and to the possession of the vendee of Frank Brown, in order to make out the necessary period of prescription. This the court declined to do; but on the contrary, charged the jury that they could not consider the possession of the executor in determining whether the vendee of Frank Brown had acquired a title by prescription to the premises in dispute. This is the vital point In this case. It is earnestly insisted by the counsel for the defendant in error that the court’s ruling in this matter is correct. The argument is that the vendor, after making an absolute deed to lands, can not prescribe against his vendee.' Counsel for the plaintiff then asserts that the possession of the executor is that of his testator; and then draws the conclusion, that, as the vendor could not prescribe against the vendee, the executor of the former can not prescribe against such vendee. This would be sound logic,, and unanswerable, but for the view which will now be stated. This court has held that possession, remaining with the grantor and never surrendered, is held under the grantee, and is not adverse to his title. Jay v. Whelchel, 78 Ga. 786 (3 S. E. 906). But an explicit disclaimer by the vendor of such relation and a notorious assertion of right in himself will be sufficient to change the character of his possession and render it adverse to the grantee. 2 C. J. 143, § 346. There is nothing in the relation of vendor and vendee by deed executed which will prevent the vendor who may remain in possession from claiming adversely to the vendee. “ To say,” says the Supreme Court of Vermont, “ that the grantor, remaining in possession after his deed, is incapable of committing a disseisin upon his grantee, involves an absurdity too gross almost for argument. He is a mere tenant by sufferance, whom the grantee may elect to treat as a tenant, or as a disseisor. He may bring ejectment, or treat him as an occupier under himself. But if the grantor set up a claim of title in himself, and this be made known to the grantee, the grantor from that time becomes a disseisor in fact, — the grantee can no longer treat him as a tenant.” Stevens v. Whitcomb, 16 Vt. 121.

The grantor by warranty deed' may acquire title against his grantee by adverse possession, and the rule estopping the grantor from setting up after-acquired title does not apply. Chatham v. Lansford, 149 N. C. 363 (63 S. E. 81, 25 L. R. A. (N. S.) 129); Abbett v. Page, 92 Ala. 571 (9 So. 332); Doolittle v. Robertson, 109 Ala. 412 (19 So. 851); Garabaldi v. Shattuck, 70 Cal. 511 (11 Pac. 778); Knight v. Knight, 178 Ill. 553 (53 N. E. 306); McClenahan v. Stevenson, 118 Iowa, 106 (91 N. W. 925); Bishop v. Van Winkle (Ky.), 117 S. W. 345; Zebriska’s Succession, 119 La. 1076 (44 So. 893); Traip v. Traip, 57 Me. 268; Hines v. Robinson, 57 Me. 324 (99 Am. D. 772); Stearns v. Hendersass, 9 Cush. (Mass.) 497 (57 Am. D. 65); Kelly v. Palmer, 91 Minn. 133 (97 N. W, 578); Sherman v. Kane, 86 N. Y. 57; Milnes v. Van Gilder, 197 Pa. 347 (47 Atl. 197, 80 Am. St. R. 828).

If the grantor can hold adversely to his grantee and acquire title by prescription against his grantee, why can not the executor of the grantor likewise hold adversely to the grantee of his testator and acquire title by prescription, not for himself, but for those whom he represents? The executor represents the devisees and legatees under the will. Fulghum v. Carruthers, 87 Ga. 484 (13 S. E. 597). It is said by counsel for the plaintiff that the possession of the executor is not in his own right, but in that of his testator, and that for this reason prescription can not be based on his possession. This contention rests upon the principle that “possession to be the foundation of prescription must be in the right of the possessor, and not of another.” Civil Code, § 4164. This means that possession must be hostile, and that the possessor can not prescribe against the persons for whom he holds possession. This contention is not sound. The possession of the executor is in his own right as such. He holds the title to the property devised until he assents to the bequests and turns over the land devised to the devisee. So there seems to be no good reason why his possession can not form a link in the chain of possessions from which a prescriptive title will ripen.

If property is conveyed to an active trustee, who holds possession of real estate for the use of the beneficiaries in the trust, his possession would be such as would enable the beneficiaries to tack their possession to his, in order to make out a prescriptive title. The possession’ of a receiver may be tacked to that of the debtor, and to that of the purchaser of the premises at a sale made under a decree in the case, to make out the full period of the prescriutive term. Verdery v. Savannah etc. Ry. Co., 82 Ga. 675 (9 S. E. 1133). Here the receiver does not hold possession in his own right, but holds it as an officer of the court, for the benefit of those to whom the property, or its proceeds, may be awarded by the final judgment in the case. If his possession is such as will support a prescription in favor of the owner of the property placed in his hands, why should not the possession of an executor be such as would support a prescription in favor of the devisees under the will of his testator ?

Such privity exists between the testator and the devisee as will authorize the tacking of the two possessions to make out the period necessary to acquire title by prescription.

Where the administrator has the legal right by statute to take the possession and control of real-estate, his possession is in privity with that of the intestate, and upon his possession prescription can be based. Cannon v. Prude, 181 Ala. 629 (62 So. 24); Ricker v. Butler, 45 Minn. 545 (48 N. W. 407); Fugate v. Pierce, 49 Mo. 441; Rowland v. Williams, 23 Or. 515 (32 Pac. 402).

If prescription can be based upon the possession of an administrator, to which the subsequent possession of a grantee from him can be tacked in order to make out the prescriptive period, there is no reason why the possession of an executor will not support prescription. The case of the executor is stronger than that of the administrator. Upon the death of an intestate his lands descend at once to his heirs, subject to be administered; but in the case of a will, the property devised or bequeathed does not pass immediately to the devisee or legatee, but the title thereto vests in the executor until he assents to the legacy. No devise or legacy passes the title until the assent of the executor is given to such devise or legacy. Civil Code, § 3895.

In this case Hamilton Brown Sr.; by his will, disposed of the premises in dispute by devising them to his son, Frank Brown. Here was an explicit disclaimer of the title of his vendee, and those claiming under such vendee. His will was probated and recorded. His executor immediately took possession of these premises under this will; and openly and notoriously held possession thereof as such executor and devisee for a period of seven years, and then: sold to Caraker, who held possession for something over four years under his deed from the devisee of these premises.

We hold that the possession of the executor can be tacked to that of the vendee of the devisee, to make out the necessary period of prescription. Judgment reversed.

All the Justices concur.