Sweat v. Lott

George, J. 1. Under the Civil Code (1910), § 4169, “Adverse possession of lands, under written evidence of title, for seven years, shall give a like title by prescription. But if such written title be forged or fraudulent, and notice thereof be brought home to the claimant before or at the time of the commencement of his possession, no prescription can be based thereon.” 2. Under the Civil Code (1910), § 4177, “Fraud which will prevent possession of property from being the foundation of prescription must be actual or positive fraud, not constructive or legal fraud.” 3. Accordingly, where a plaintiff in an action for land alleges that the defendant has been in the adverse possession of the land under written evidence of title for more than seven years prior to the filing of the suit and (the petition being properly construed on demurrer) seeks to avoid prescriptive title in the defendant by charging him with constructive notice only of an alleged infirmity in the deed under which he entered, the petition is properly dismissed on demurrer, no disability of the plaintiff, or of those under whom lie claimed, during the whole or any part of the prescriptive period, being alleged. Judgment affirmed. All the Justices concur.