O.C.G.A. § 44-5-162 (2019)
Effect of fraud on prescription
(a) In order for fraud to prevent the possession of property from being the foundation of prescription, such fraud must be actual or positive and not merely constructive or legal. (b) When actual or positive fraud prevents or deters another party from acting, prescription shall not run until such fraud is discovered. (Civil Code 1895, § 3597; Civil Code 1910, § 4177; Code 1933, § 85-414.) History of Code section. - This Code section is derived from the decision in Salter v. Salter, 80 Ga. 178, 4 S.E. 391 (1887).
Annotations
JUDICIAL DECISIONS Presumption of good faith arises from adverse possession. Baxley v. Baxley, 117 Ga. 60, 43 S.E. 436 (1903). Moral fraud required to defeat prescriptive title for fraud. - In order to defeat a prescriptive title for fraud, the claimant’s written evidence of title, under which the claimant went into possession of the property, must be shown to have been fraudulent within the claimant’s own knowledge, or notice thereof brought home to the claimant before or at the time of the commencement of the claimant’s possession. Wingfield v. Virgin, 51 Ga. 139 (1874); Street v. Collier, 118 Ga. 470, 45 S.E. 294 (1903); Wood v. Wilson, 145 Ga. 256, 88 S.E. 980 (1916). See also Salter v. Salter, 80 Ga. 178, 4 S.E. 391, 12 Am. St. R. 249 (1887). To defeat prescription title, the fraud of the party claiming thereunder must be such as to change one’s conscience; one must be cognizant of the fraud, not by constructive but by actual notice. Kelley v. Tucker, 175 Ga. 796, 166 S.E. 187 (1932). Only moral fraud will prevent possession under color of title from ripening into prescriptive title. Wanamaker v. Wanamaker, 215 Ga. 473, 111 S.E.2d 94 (1959). Actual fraud cannot be founded on presumptive notice, on that sort of notice which is based upon record, or which is presumed from want of diligence. Baxter v. Phillips, 150 Ga. 498, 104 S.E. 196 (1920); Mohr & Sons v. Dubberly, 165 Ga. 309, 140 S.E. 856 (1927). Direct evidence of bona fide possession is not required. Baxley v. Baxley, 117 Ga. 60, 43 S.E. 436 (1903).
In order to constitute element of continuity which is essential to adverse possession as the foundation of a good prescriptive title, it is not necessary that adverse possession be maintained from the statutory period by the same person, since continuity may as effectively be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between the people, so as to thus permit attacking of their unbroken successive possessions. Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257, 24 S.E.2d 59 (1943). In order to show privity between successive occupants, all that is necessary is that one shall have received one’s possession from the other by some act of such other or by operation of law; it is not necessary that such a transfer be in writing, since this may be accomplished by a parol agreement or understanding, under which the actual possession of the premises is delivered, as well as by a written conveyance. Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257, 24 S.E.2d 59 (1943). Possession by tenant or agent sufficient. - Possession by a tenant or agent, under a parol understanding with the owner, will suffice to support the owner’s claim of prescriptive title. Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257, 24 S.E.2d 59 (1943). Alleged fraud did not defeat adverse possession. - Upon finding that the trial court had exclusive subject matter jurisdiction, the court also properly ruled that a sibling had prescriptive title to certain property under
O.C.G.A. § 44-5-164 by possessing the property under color of title for a period greater than seven years, satisfying the requirements of O.C.G.A. § 44-5-161; the fraud alleged by the other siblings did not defeat the title as the siblings were unaware of the fraud from 1989 to 2002. Goodrum v. Goodrum, 283 Ga. 163, 657 S.E.2d 192 (2008).
Cited in Thomas v. Couch, 171 Ga. 602, 156 S.E. 206 (1930); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Reynolds v. Smith, 186 Ga. 838, 199 S.E. 137 (1938); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80, 3 S.E.2d 91 (1939); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294, 12 S.E.2d 53 (1940).
RESEARCH REFERENCES Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 13 et seq., 111 et seq., 118, 130, 136, 143, 144, 264, 301. C.J.S. - 2 C.J.S., Adverse Possession, §§ 208, 263.
ALR. - What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54 ALR2d 13.