Ayer v. Chapman

Beck, J. (After stating the foregoing facts.) We are of the opinion that the court erred in directing a verdict for the defendant. The tax fi. fas., under which the property in question was *611 levied upon and sold at city sheriff’s sale on November 5, 1889, were void. These fi. fas. were issued out of the office of the clerk of the City Council of Augusta, in favor of the City of Augusta, for city taxes. The fi. fas. for the years 1886 and 1887 were against “Est. of Mrs. 0. Oliver;” for the years 1888 and 1889 against “Mrs. 0. Oliver;” and the special tax fi. fa. for the year .1888 was against “Est. of Mrs. 0. Oliver.” Miss Olivia Oliver died prior to March 26, 1868. The deed from the sheriff of the City of Augusta to C. B. Houston, dated November 5, 1889, conveying the property, recited that the sale was made under the levy of tax fi. fas. issued out of the clerk’s office of the City of Augusta in favor of the City of Augusta against “Est. of Mrs. 0. Oliver,” said deed having the original fi. fas. attached. These tax fi. fas. were void (Miller v. Brooks, 120 Ga. 232, 47 S. E. 646), and the deed executed by the sheriff of the City of Augusta in pursuance of a sale under the fi. fas. did not convey title to the purchaser. But whether the deed was good as a color of title, it is not necessary to decide. Eor, conceding that the deed was color of title, it was necessary for the defendant, in order to defeat the plaintiffs in this case, to have acquired a good prescriptive title through the occupancy by himself and his predecessors in title of the premises in dispute for the prescriptive period after the right to have possession of the property had accrued to the plaintiffs or some one representing them; and under the facts of the case no such adverse possession of the defendant and his predecessors in title as against the plaintiffs was shown. Whether or not Walter J. Brookes, who died in 1886, was' by the terms of the will made trustee for the remainders created by the first and second items of the will of Miss Olivia Oliver, it is shown by uncontradicted evidence that he never accepted the trust and was never in a position to represent either the life-tenant or the remaindermen. Hp to the time of the death of Miss Julia Euphemia Brookes (afterwards Graham) in 1909, there was no one clothed with the legal, title to the remainder estate, but the trusteeship was vacant. Consequently prescription did not begin to run against the remainder-men until 1909, and the prescriptive period necessary to the maturity of a title by prescription, where land is held under a color of title, had not elapsed before suit was brought for the recovery of the land in controversy. The provision of the Civil Code, § 4175, *612 as to prescription, against the estate of a decedent on which no representation is had in five years, does not apply to trust estates. Jones v. Rountree, 138 Ga. 757 (76 S. E. 55). It follows from what has been said that the verdict in favor of the defendant, which was rendered under the direction of the court, was not authorized and must be set aside. Judgment reversed. Fish, G. J., absent. Evans and Gilbert, JJ., concur; Atkinson and Hill, JJ., dissent.