James v. Maddox , 153 Ga. 208 ( 1922 )

Gilbert, J.

1. “ If one with notice sell to one without notice, the latter is protected.” Civil Code (1910), § 4535. Accordingly, the court properly sustained the demurrer to that portion of the petition which alleged “ that defendant’s original predecessor, in claiming title to said land, entered with full knowledge that he had no title, that the title was in Davis Pruitt; and he also knew that his claim of title was fraudulent. The origin of defendant’s claim being in fraud, his title could never ripen into a perfect prescriptive title; and petitioners allege that this notice and knowledge of the fraudulent inception of defendant’s claim of title attached to and followed the same on down to defendant.” The allegations in regard to fraud are insufficient to charge any fraud, except notice on the part of defendant’s predecessor in title.

2. The facts set out in the petition in regard to the appointment of John Davis Pruitt as administrator of Davis Pruitt and the suits filed by him as administrator, to which special demurrers were interposed, are insufficient to prevent prescriptive title from ripening.

3. Ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense. Where, however, such defense is anticipated, it must be effectually avoided, or the complaint is bad. Latta v. Miller, 109 Ind. 302 (10 N. E. 100); Western Union Tel. Co. v. Yopst, 118 Ind. 248 (20 N. E. 222, 3 L. R. A. 224) ; Calvo v. Davies, 73 N. Y. 211 (29 Am. R. 130); 21 R. C. L. 492, § 55.

4. The petition must be taken most strongly against the pleader, on the decision of a demurrer. Krueger v. McDougald, 148 Ga. 429 (96 S. E. 867). Thus construed the petition shows that the plaintiffs and their predecessors in title have not been in possession of the land since the death of Davis Pruitt in 1857; nor does it allege any facts sufficient to prevent the ripening of prescriptive title. It also shows that the defendant and her predecessors in title have been in possession for an indefinite number of years, presumptively since 1857, or at least for a period sufficient for prescriptive title to ripen. It further shows that John .Davis Pruitt, as administrator of the estate of Davis Pruitt, filed suit for the land, and that such suit is either still pending or has resulted in favor of the defendant. In either event the suit would bar the present proceeding. No amendment having been offered to cure the defects pointed out, the court did not err in sustaining the demurrers and dismissing the petition.

■Judgment affirmed.

All the Justices concur.

Anticipating the defenses which might be set up by the defendant the petition also alleged in effect that defendant’s original predecessor, in claiming title to said land, entered with full knowledge that he had no title and that the title was in Davis Pruitt, and had come into possession of the land with full knowledge of petitioners’ rights, title, and interest therein, and is not a bona fide purchaser without notice. It is not alleged in what manner the defendant acquired possession of the land sued for. There is no allegation that any of the petitioners or their predecessors in title since the death of Davis Pruitt in 1857 have been in possession of the land, or that any one holding adversely to the defendants has been in possession since 1857. The petition does not allege who were the parties to the suit brought in the court of ordinary of Fulton' County to set aside the judgment appointing J. Davis Pruitt as administrator of the estate of Davis Pruitt, deceased; and therefore it does not appear that this defendant was a party to that proceeding, although information on that subject was called for by special- demurrer.

The defendant filed general and special demurrers to the petition. Among the grounds of special demurrer were: (a) There is no allegation in the petition as to why defendant is said to be illegally or fraudulently in possession of the property sued for, and there is no allegation going to show that the defendant is not a bona fide purchaser or that he came into possession with knowledge of any of petitioners’ rights, (b) That the allegations in regard to notice by reason of the facts of record in the office of the Secretary of State are an erroneous conclusion of law, and that the facts alleged are not such notice to defendant as would prevent her from becoming a bona fide purchaser without notice, (c) That all allegations in regard to notice on the part of the defendant were mere conclusions, without the statement of facts upon which they were based, and were insufficient to charge the defendant. (d) That the proceedings in the court of ordinary upon which the judgment revoking letters of administration of J. Davis Pruitt was based are not sufficiently set out, and the allegation that no act of said administrator is binding upon petitioners and that every act of said administrator was illegal and void and absolutely without any binding force or effect upon the rights of plaintiff is an incorrect legal conclusion; that no facts are shown, sufficient to indicate that his acts as administrator were illegal and void. (e) That the allegation in regard to the suits filed in Fulton superior court by J. Davis Pruitt, as administrator of the estate of Davis Pruitt, were insufficient, because the same are not named and described. The court sustained the general demurrer and all the special demurrers, and the plaintiffs excepted.

Hill & Adams, for plaintiffs.- Linton 0. Hopkins, for defendant.