Wyatt v. Elam , 23 Ga. 201 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

Were the two charges of Court below right?

At the time when Elam purchased, the Wyatts were in possession under deeds, but deeds unrecorded, and more than twelve months old. Was this possession notice to Elam of those deeds ?

The fourth section of the registry act of 1837 is as follows: In all cases where two or more deeds shall be executed by the same person or persons, conveying the same premises to different persons, the one recorded within twelve months from the time of execution, (if the feoffee have notice of a pri- or deed unrecorded at the time of the execution of the deed to him or her,) shall have the preference; and if all be recorded, or not recorded within said time, the eldest shall have the preference.” Cobb Dig. 175.

“ If the feoffee have notice of a prior deed” — is the expression, not if he have some particular sort of notice, but if he have notice. Now notice of any sort is notice. According, then, to the plain words of this act, any sort of notice will be good; and, therefore, according to the plain words of the act, not merely actual notice, but also constructive notice, will be good.

[1.] Possession of land, is, to all, constructive notice of the-title by which the person in possession holds the land. Hill Trustees, 312.

In the present case, however, the possession in those who had the title, was not exclusive. The two minor sons of Philip Wyatt were the persons who had the title. They had the older of the two deeds. But the possession was in Philip Wyatt, as well as, in them. And the effect of these two facts, (that they were minors, and that their possession, and that of their father, was joint,) must be greatly to weaken the force of the fact, that they were in possession, as a fact to show notice of their title, to other purchasers. Still, the effect could not be, wholly to destroy the force of that fact

And if this be so, the first charge of the Court was too general; for it amounted to a charge, that this fact of possession was wholly worthless on this question of notice.

We think the fact was one, whieh the jury should have been permitted to take into consideration on the question, whether Elam, at the time when he purchased, had notice of the older deed under which the minors held.

As to the second of the two charges:

After the two minors obtained their deed¡to the land, Philip Wyatt, their father, set up no title to it. He and they were thenceforth in the joint possession of the land, holding it under the deed to them. The deed to the minors was the thing which all three held under. This being so, it must be considered, that the possession which the father had, such as it was, he had for not against, the minors. And, therefore, it must be considered, that, in effect, the minors alone had the whole possession. Stamper et al. vs. Griffin, 20 Ga. 324.

[2.] The minors then, by themselves and their father, had the possession of the land. They held it under an absolute title starting out of the father, consequently, they must have held it adversely to the father, and to any one claiming through the father; at least, to any one claiming through' the father by a title of a subsequent date to theirs. Consequently they must have held it adversely to Elam.

Hence, we think, that this charge of the Court also, was erroneous.

There ought then to be a new trial.

Judgment reversed.