Floyd v. Ricketson

Fish, C. J. (After stating the facts.) 1, 2. If, upon the separation of B. P. Floyd and his wife, Bhoda Floyd, she, on November 13, 1889, conveyed to him the east half of lot 113, in consideration of a given sum of money, or in consideration of his then conveying to her the west half of this lot, and he thereupon entered into possession of, the east half of the lot, improved the same bjr opening up a farm and building houses thereon, and continued in adverse possession until he conveyed such east half to plaintiffs on June 14, 1898, then, without more, the judge was authorized to find that plaintiffs had title to the land in question, by prescription under color. The deed from Bhoda Floyd, under which B. P. Floyd went into possession, and held possession for more than seven years, was executed in 1889, and did not have to be recorded in order for his actual possession thereunder of a- part of the tract of land therein described to become constructive possession of the entire tract, and to be the foundation for a prescription, under color of title, as to the whole of the premises described in the deed. As he held actual adverse possession of a portion of the east half of lot 113, under color of title to the whole of the same, for more than seven.years before he, in 1898, conveyed this half lot to the plaintiffs, title by prescription thereto had ripened -in him, and his deed to the plaintiffs transferred it to them, if such deed were otherwise valid. Roberson v. Downing Co., 120 Ga. 833 (4); O’Brien v. Fletcher, 123 Ga. 427 This is true although the deed to B. P. Floyd from his wife, Bhoda Floyd, might be void as title, because made in. pursuance of a sale of her separate estate to her husband, without such sale having been allowed by an order of the superior court of her domicile. For while such deed may have been void as title, it was nevertheless good as color of title' if there were no fraud in its procurement, and, from the evidence, there seems to have been none. 3. The court did not err in admitting in evidence the deed executed by the administrator of the estate of Mark Lott, over the objections of the defendants; the deed being accompanied by a certified copy, from the minutes of the court of ordinary of Coffee county, of an order, granted at the November term, 1866, authorizing the maker of the deed, as administrator of the estate of Mark [675] Lott, deceased, to sell all the land belonging to such estate. Although it does not appear that either the order or the minutes was signed by the ordinary, yet, as it was entered on the minutes, it will be presumed, in the absence of proof to the contrary, that the ordinary signed the minutes, which was equivalent to signing the order. See Sweeney v. Sweeney, 119 Ga. 76. 4. Nor was there any merit in the objection to the deed, that it did not appear therefrom that the sale was advertised for the requisite number of days required by law and in the official organ of Coffee county. The deed recited that the administrator, “having complied with all the reqidstins [requisities ?] of the law,” etc. “A recital, in an administrator’s deed, of a compliance with all of the requisites of the law necessary to be done after the order of sale is granted, is prima facie evidence that these requisites were complied with.” Davie v. McDaniel, 47 Ga. 195; Civil Code, §3454. 5. While this deed was not Connected with a good and sufficient title from the State or from any other source, and taken alone, or in connection with the prior deeds introduced, one to Mark Lott and the other to his grantor, did not show a perfect title, and there was no evidence that the defendant, Rhoda Floyd, claimed under. this administrator’s deed, so as to make it the common source of title claimed by plaintiffs and defendants, still the deed was admissible in evidence. Our construction of the instrument is, that it conveyed the fee in lot 113 to R. P. Floyd, but that he was not to have possession of the premises until the death of Rhoda Floyd; and therefore neither he nor those holding under him could base a prescription under this deed as color during the life of Rhoda Floyd. But as one of the controlling points in the ease is as to whether or not there was moral fraud in the transaction between R. P. Floyd and Rhoda Floyd, in which she conveyed to him the property in question, we think this administrator’s deed was admissible as probably shedding some light on this question. For if by this deed the wife, Rhoda Floyd, took a life-estate in the whole of lot 113, and the husband; R. P. Floyd, took the fee therein, they might, after their marital separation, each acting in good faith, have agreed to settle their respective claims to the lot in the manner indicated in her testimony, that is, by the execution of a deed, in fee simple, by her to him to the east half of the lot, and [676] the execution of such a deed by him to her to the west half thereof. While it did not appear, on the trial, whether Bhoda Floyd claimed under this deed or not, yet the fact that such a deed was in existence, at the time that she made her deed to her husband to the east half of lot 113 and he made her a deed to the west half thereof, was a circumstance which the jury might take into consideration upon the question as to the good faith of B. P. Floyd in that transaction between his wife and himself. For only moral fraud on his part would prevent him from basing a prescription upon adverse possession under the deed from Bhoda Floyd to himself. The administrator’s deed was very inartisticalty, unskillfully, and awkwardly drawn, and is therefore difficult of construction, and it may well be inferred that differences might have arisen between the husband and wife, after their domestic disagreement began as to their respective rights under it, and that they agreed to settle these differences and contentions by the exchange of deeds shown by her testimony. 6. The judge erred in rejecting the affidavit of Perrry Floyd, offered by the defendants, as it was certainly relevant on a controlling question in the case, viz., as to the good faith of B. P. Floyd in taking the deed from his wife; and the fact that Perry Floyd was the son of defendant, Bhoda Floyd, did not disqualify him as a witness. Blount v. Beall, 95 Ga. 182. For this error the judgment-granting the injunction will have to be reversed, as we can not say what would have been the ruling of the judge had the affidavit been admitted and considered by him. Judgment reversed,. All the Justices concur, except Holden, J., who did not preside.