Applicability.

- Statute does not apply against a judgment lien on a decedent's estate in favor of land in the hands of devisees when the action was brought before the debt was barred. Redd v. Davis, 59 Ga. 823 (1877) (see O.C.G.A. § 44-5-164).

Statute applies in favor of a vendee against a vendor holding legal title to property for security. Janes v. Patterson, 62 Ga. 527 (1879) (see O.C.G.A. § 44-5-164).

Statute applies in favor of a claimant against the lien of a judgment against the claimant's vendor when there has been no levy on the property until after the prescriptive title has ripened. Johnston v. Neal, 67 Ga. 528 (1881) (see O.C.G.A. § 44-5-164).

Permissive possession cannot be foundation of prescription until adverse claim and actual notice to other party are shown. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931).

Incorporeal rights.

- Incorporeal rights, such as the right to maintain a sign or show case on another's property, may be acquired. Smith v. Jensen, 156 Ga. 814, 120 S.E. 417 (1923).

Ripened prescriptive title extinguishes inconsistent titles.

- When an adverse possessor has held for the requisite period and the possessor's prescriptive title ripens, it extinguishes all other inconsistent titles and itself becomes the true title. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

Jury instruction held not cause for new trial.

- When the provision of this statute which relates to forged or fraudulent deeds was not applicable to a particular action, giving this statute in charge to the jury could not harm the plaintiff and is not cause for a new trial. Butler v. Lovelace-Eubanks Lumber Co., 37 Ga. App. 74, 139 S.E. 83 (1927); Rogers v. Manning, 200 Ga. 844, 38 S.E.2d 724 (1946) (see O.C.G.A. § 44-5-164).

Whether or not taking possession under a tax deed before the expiration of the period of redemption is such fraud as would authorize charging this statute, the charge was not harmful to the petitioner, and a new trial was not granted. McDonald v. Wimpy, 206 Ga. 270, 56 S.E.2d 524 (1949) (see O.C.G.A. § 44-5-164).

Cited in Doe v. Roe, 36 Ga. 199 (1867); Wright v. Smith, 43 Ga. 291 (1871); Garrett v. Adrain, 44 Ga. 274 (1871); Wingfield v. Davis, 53 Ga. 655 (1875); Bennett v. Walker, 64 Ga. 326 (1879); Veal v. Robinson, 70 Ga. 809 (1883); Millen v. Stines, 81 Ga. 655, 8 S.E. 315 (1888); Parker v. Waycross & F.R.R., 81 Ga. 387, 8 S.E. 871 (1889); Bussey v. Jackson, 104 Ga. 151, 30 S.E. 646 (1898); Wardlaw v. McNeill, 106 Ga. 29, 31 S.E. 785 (1898); Baxley v. Baxley, 117 Ga. 60, 43 S.E. 436 (1903); Street v. Collier, 118 Ga. 470, 45 S.E. 294 (1903); Peeples v. Wilson, 140 Ga. 610, 79 S.E. 466 (1913); Buchan v. Daniel, 147 Ga. 450, 94 S.E. 578 (1917); Spillar v. Dickson, 148 Ga. 90, 95 S.E. 994 (1918); Cock v. Lipsey, 148 Ga. 322, 96 S.E. 628 (1918); Watts v. Boothe, 148 Ga. 376, 96 S.E. 863 (1918); Baxter v. Phillips, 150 Ga. 498, 104 S.E. 196 (1920); Dodge v. Clark, 268 F. 784 (5th Cir. 1920); Sweat v. Lott, 151 Ga. 66, 105 S.E. 835 (1921); Byrom v. Riley, 154 Ga. 580, 114 S.E. 642 (1922); Ashford v. Holliday, 169 Ga. 237, 149 S.E. 790 (1929); Cattahoochee Fertilizer Co. v. Quinn, 169 Ga. 801, 151 S.E. 496 (1930); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619, 173 S.E. 436 (1934); Rocker v. De Loach, 178 Ga. 480, 173 S.E. 709 (1934); James v. Riley, 181 Ga. 454, 182 S.E. 604 (1935); Kelley v. Spivey, 182 Ga. 507, 185 S.E. 783 (1936); Warsaw Turpentine Co. v. Fort Barrington Club, 185 Ga. 540, 195 S.E. 755 (1937); Sewell v. Sprayberry, 186 Ga. 1, 196 S.E. 796 (1938); Cartledge v. Trust Co., 186 Ga. 718, 198 S.E. 741 (1938); Reynolds v. Smith, 186 Ga. 838, 199 S.E. 137 (1938); Stanley v. Laurens County Bd. of Educ., 188 Ga. 581, 4 S.E.2d 164 (1939); Dorsey v. Dorsey, 189 Ga. 662, 7 S.E.2d 273 (1940); Crump v. McEntire, 190 Ga. 684, 10 S.E.2d 186 (1940); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294, 12 S.E.2d 53 (1940); Flournoy v. United States, 115 F.2d 220 (5th Cir. 1940); Barnes v. Avery, 192 Ga. 874, 16 S.E.2d 861 (1941); MacNeil v. Bazemore, 194 Ga. 406, 21 S.E.2d 414 (1942); Hardy v. Brannen, 194 Ga. 252, 21 S.E.2d 417 (1942); Dyal v. Sanders, 194 Ga. 228, 21 S.E.2d 596 (1942); Holloway v. Woods, 195 Ga. 55, 23 S.E.2d 254 (1942); Sharpe v. Stewart, 195 Ga. 610, 24 S.E.2d 781 (1943); Hall v. Metropolitan Life Ins. Co., 198 Ga. 858, 33 S.E.2d 1 (1945); Elliott v. Robinson, 198 Ga. 811, 33 S.E.2d 95 (1945); Chalker v. Beasley, 72 Ga. App. 652, 34 S.E.2d 658 (1945); Barfield v. Vickers, 200 Ga. 279, 36 S.E.2d 766 (1946); Knighton v. Hosty, 200 Ga. 507, 37 S.E.2d 382 (1946); Castile v. Burton, 200 Ga. 877, 38 S.E.2d 919 (1946); Allen v. Bone, 202 Ga. 349, 43 S.E.2d 311 (1947); Wright v. Anthony, 205 Ga. 47, 52 S.E.2d 316 (1949); Blue Ridge Apt. Co. v. Telfair Stockton & Co., 205 Ga. 552, 54 S.E.2d 608 (1949); Rogers v. Moore, 207 Ga. 182, 60 S.E.2d 359 (1950); Bell v. Cone, 208 Ga. 467, 67 S.E.2d 558 (1951); Farlow v. Brown, 208 Ga. 646, 68 S.E.2d 903 (1952); Smith v. Powers, 208 Ga. 768, 69 S.E.2d 374 (1952); Harrison v. Durham, 210 Ga. 187, 78 S.E.2d 482 (1953); Floyd v. Carswell, 211 Ga. 36, 83 S.E.2d 586 (1954); Thurston v. City of Forest Park, 211 Ga. 910, 89 S.E.2d 509 (1955); Phillips v. Wheeler, 212 Ga. 603, 94 S.E.2d 732 (1956); Wanamaker v. Wanamaker, 215 Ga. 473, 111 S.E.2d 94 (1959); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Whitton v. Whitton, 218 Ga. 845, 131 S.E.2d 189 (1963); Harrison v. Morris, 108 Ga. App. 566, 133 S.E.2d 899 (1963); Shepherd v. Frasier, 223 Ga. 874, 159 S.E.2d 58 (1968); Herrington v. City of Atlanta, 224 Ga. 465, 162 S.E.2d 420 (1968); Howell v. Baynes, 225 Ga. 164, 166 S.E.2d 359 (1969); Georgia Power Co. v. Gibson, 226 Ga. 165, 173 S.E.2d 217 (1970); Stephens v. Cogdell, 227 Ga. 121, 179 S.E.2d 45 (1971); Adair v. Atlanta Jewish Community, Inc., 228 Ga. 422, 185 S.E.2d 921 (1971); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Whitworth v. Whitworth, 233 Ga. 53, 210 S.E.2d 9 (1974); Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977); Stephens v. Stephens, 239 Ga. 528, 238 S.E.2d 71 (1977); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Crosby v. Jones, 241 Ga. 558, 246 S.E.2d 677 (1978); Fuller v. Smith, 245 Ga. 751, 267 S.E.2d 23 (1980); Atlanta Trailer Mart, Inc. v. Ashmore Foods, Inc., 247 Ga. 254, 275 S.E.2d 336 (1981); Ross v. Lowery, 249 Ga. 307, 290 S.E.2d 61 (1982); Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997); Roach v. Gwinnett County, 273 Ga. 741, 545 S.E.2d 912 (2001); Trammell v. Whetstone, 250 Ga. App. 503, 552 S.E.2d 485 (2001); Campbell v. Landings Ass'n, 289 Ga. 617, 713 S.E.2d 860 (2011).

Compliance with possession requirements necessary.

- In defining the adverse possession which may be the foundation of a prescriptive title, it was best to state the necessary elements of such possession as those elements were stated in former Civil Code 1910, § 4164 (see O.C.G.A. § 44-5-161), relating to adverse possession, as in some cases the omission of any one of those elements may be ground for the grant of a new trial. Smith v. Board of Educ., 168 Ga. 755, 149 S.E. 136 (1929).

Whether title by prescription was claimed under former Code 1933, § 85-406 (see O.C.G.A. § 44-5-163), relating to 20 years' actual adverse possession, or under former Code 1933, § 85-407 (see O.C.G.A. § 44-5-164), relating to adverse possession for seven years under written evidence of title, the possession relied upon must meet the requirements of former Code 1933, § 85-402 (see O.C.G.A. § 44-5-161), relating to the essentials of possession. Martin v. Clark, 190 Ga. 270, 9 S.E.2d 54 (1940); Moore v. Stephens, 199 Ga. 500, 34 S.E.2d 716 (1945).

Wherever the proof is that one in possession holds for oneself to the exclusion of all others, the possession so held is adverse to all others, whatever relation in interest and privity in which one may stand to others. Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948).

Purchaser who buys in good faith and gets a paper claim of right acquires, in seven years, a prescriptive title. Lanier v. Graham, 179 Ga. 744, 177 S.E. 574 (1934).

If a person buys land in good faith, believing the person is obtaining a good title, enters into possession thereof and remains there continuously, uninterruptedly, peaceably, etc., for seven years, that possession ripens into a good title, whether the title the person purchased originally was good or not. Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941); Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

When all other elements of prescription are present, adverse possession of land under written evidence of title for seven years will give a good title by prescription. Knighton v. Hasty, 200 Ga. 507, 37 S.E.2d 382 (1946); Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946).

Possession with cotenants insufficient for adverse possession.

- Silent and peaceable possession of a tenant in common, with no act which can amount to an ouster of the cotenants, is not enough. There must be actual notice of the adverse claim or unequivocal acts making the possession visible, hostile, exclusive and notorious; otherwise, exclusive possession will be presumed to be in support of the common title. Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972).

One claiming prescriptive title against a cotenant must not only show the usual elements of prescription as provided by former Code 1933, § 85-407 (see O.C.G.A. § 44-5-164), but must also show that one's claim of title by prescription meets at least one of the conditions stated in former Code 1933, § 85-1005 (see O.C.G.A. § 44-6-123). Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972).

Easement.

- Easement may be acquired by prescription in 20 years unless there is some color of title, in which case only seven years is required. Nodvin v. Plantation Pipe Line Co., 204 Ga. App. 606, 420 S.E.2d 322 (1992).

Whether ouster results from occupation and possession is a question of fact for the jury. Roumillot v. Gardner, 113 Ga. 60, 38 S.E. 362, 53 L.R.A. 729 (1901).

Possession must be adverse. McLaren v. Irvin, 63 Ga. 275 (1879).

Adverse possession by tenant.

- There can be adverse possession, whether under color of title, or acquiescence in line, by an owner of adjacent property who is also tenant of an adjacent property owner during such terms as the tenancy is in effect. Everett v. Culberson, 215 Ga. 577, 111 S.E.2d 367 (1959).

Possession may be actual or constructive. Brookman v. Rennolds, 148 Ga. 721, 98 S.E. 543 (1919).

Possession must be continuous. W.A. Greer & Co. v. Rainey, 120 Ga. 290, 47 S.E. 939 (1904).

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 for 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).

Requirement of continuity of possession is one of substance, and not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions. Chamblee v. Johnson, 200 Ga. 838, 38 S.E.2d 721 (1946).

Opposing landowner's minority status affects prescription period.

- Transferee's claim of adverse possession failed as such could not be based on a period of time in which the opposing landowner was a minor. Reece v. Smith, 276 Ga. 404, 577 S.E.2d 583 (2003).

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 person or by operation of law. 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).

Tacking.

- Possession by different holders may be tacked together when the character of the prior possession also meets the requirements of this statute. Worthy v. Kinamon, 44 Ga. 297 (1871); Brown v. Caraker, 147 Ga. 498, 94 S.E. 759 (1917) (see O.C.G.A. § 44-5-164).

Adverse possession of land by promoters or officers of a corporation may be tacked to the adverse possession of the corporation after the corporation's organization and incorporation. Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940).

Good faith construed.

- Good faith, as contemplated by the adverse possession statutes, has relation to the actual existing state of the mind, whether so from ignorance, skepticism, sophistry, delusion, or imbecility, and without regard to what it should be from given legal standards of law or reason. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

Presumption of good faith arises from adverse possession; direct evidence of bona fides is not required. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

Good faith presumed.

- When actual possession had been shown, good faith in the origin of such possession, required by former Code 1933, §§ 85-402 and 85-407 (see O.C.G.A. §§ 44-5-161 and44-5-164), will ordinarily be presumed; this will not be true if actual possession had been only alleged. Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941).

Jury determines question of good faith.

- Question of what is good faith, in a person claiming under color of title, is one of fact for the jury. Lee v. O'Quin, 103 Ga. 355, 30 S.E. 356 (1898).

Ordinarily, the question of a prescriber's good faith is one of fact to be determined by the jury. Quarterman v. Perry, 190 Ga. 275, 9 S.E.2d 61 (1940).

Motion for directed verdict properly denied.

- See Wisenbaker v. Warren, 196 Ga. App. 551, 396 S.E.2d 528 (1990).

When prescriptive title ripened.

- When the uncontradicted evidence shows that the plaintiff and the plaintiff's immediate grantor, in whom demises were properly laid, entered in good faith and were successively in continuous adverse possession of certain property, under color of title, of the land so described, for more than seven years before the alleged ouster, the evidence demanded a finding for the plaintiff on the basis of title by prescription. Elliott v. Robinson, 192 Ga. 682, 16 S.E.2d 433 (1941).

When the evidence conclusively showed that the defendant and the defendant's predecessors in title acquired color of title to the property in dispute and bona fide entered into possession under their respective paper titles under a claim of right, and that the adverse possession of the defendant together with that of defendant's predecessors in title was for about 13 years (more than seven years), the prescriptive title of the defendant thereby ripened, extinguished all inconsistent titles and became the true title to the property. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

Possession, use, and upkeep of a road by the public as a highway for 20 years ripens into prescriptive title. Hyde v. Chappell, 194 Ga. 536, 22 S.E.2d 313 (1942).

Possession by tenant or agent under parol understanding with owner will suffice to support the owner's claim of a prescriptive title. Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257, 24 S.E.2d 59 (1943).

Prescription in favor of third persons against trust estate.

- When interest of remainderman is equitable, and legal title is vested in trustee who holds such title, not only for the life tenant, but also for the remainderman, prescription will run in favor of third persons holding adversely to the trust estate. Mathis v. Solomon, 188 Ga. 311, 4 S.E.2d 24 (1939).

Because a trust's predecessors in interest to a disputed parcel of land maintained public, exclusive, and continuous possession of a tract for the required time frames under both O.C.G.A. §§ 44-5-163 and44-5-164, and the original grantee's hostile possession of the property was done in good faith that a claim of right existed, the trial court did not err in adopting a special master's award and findings that the trust owned the disputed property against the rights of a contesting neighbor. Crawford v. Simpson, 279 Ga. 280, 612 S.E.2d 783 (2005).

Reconstruction of dam and pond.

- Ample evidence was presented of a landowner family's actual or constructive possession of the entirety of the property described in their deed, including their entry on the land to construct a dam and pond visible to their neighbors, well in excess of the seven-year time period required to establish prescriptive title by adverse possession pursuant to O.C.G.A. § 44-5-164. Mathews v. Cloud, 294 Ga. 415, 754 S.E.2d 70 (2014).

Possession adverse to mortgagee denied by purchase of encumbered title.

- When the purchaser buys from the mortgagor and the purchaser's title is a deed from the mortgagor, with seven years' possession of the land, and if the mortgage is legal and has been recorded within the time prescribed by law, the purchaser buys the title of the mortgagor encumbered with the lien of the mortgage; the purchaser does not hold adversely to the mortgagee, and no title by prescription is acquired so as to defeat the mortgage lien. Fudge v. Bailey, 182 Ga. 119, 185 S.E. 91 (1936).

Title divested by sheriff's sale.

- All title asserted by defendant and any interest or claim that the defendant had because of deed was completely divested and extinguished by sheriff's legally conducted sale on an execution, admitted to be valid; after the sheriff executed and delivered to the bank the sheriff's deed to the land in controversy, defendant had no more interest in, or claim to the land, than one who had never professed to have title and had no written evidence of title on which to base seven years of possession for title by prescription. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943).

Title not prevented by homestead application made subsequent to deed.

- When a homestead never became legally operative by reason of a deed made prior to the application for homestead, and if the alleged equitable redemption of the property under such deed was never asserted by proper legal or equitable proceedings, and none of the claimants were shown to be laboring under disabilities, a claim of homestead will not prevent title by prescription from ripening in persons in adverse possession of the property for over 40 years under a claim of right. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946).

Prescription not defeated by prior deed.

- Prescriptive title which meets the requirements prescribed by statute will not be defeated by the fact that a grant, through whom the claimants of prescription held, had made a deed prior to that under which the claimants claimed, even though it was of record. Hunt v. Pond, 67 Ga. 578 (1881).

Outstanding recorded title will not prevent ripening of title by prescription if the possessor enters in good faith under written evidence of title from another. Hearn v. Leverette, 213 Ga. 286, 99 S.E.2d 147 (1957).

Proposed prescription defeated.

- Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008).

Possession refers to title.

- Possession, if held under a claim of right, refers to the title, actual or supposed, under which the right of possession is claimed. Patellis v. Tanner, 199 Ga. 304, 34 S.E.2d 84 (1945).

Written evidence of title is essential in respect to a claim or defense based on adverse possession for seven years. Seaboard Coast Line R.R. v. Carter, 231 Ga. 5, 200 S.E.2d 113 (1973).

To entitle the possessor to the benefit of the possessor's color of title, there must be a writing; it must purport to convey the property to the possessor (to one holding either the corporeal or the legal possession), and not to others whom the possessor does not hold; it must contain such a description of the property as to render it capable of identification, and the possessor must in good faith claim the land under it. Capers v. Camp, 244 Ga. 7, 257 S.E.2d 517 (1979).

Phrase "written evidence of title" means color of title. Warlick v. Rome Loan & Fin. Co., 194 Ga. 419, 22 S.E.2d 61 (1942); Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943); Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948); Bracewell v. King, 147 Ga. App. 691, 250 S.E.2d 25 (1978).

"Color of title" defined.

- Color of title is anything in writing which serves to define the extent and character of the claim with parties from whom it may come and to whom it may be made. Burdell v. Blain, 66 Ga. 169 (1880).

Color of title is a writing upon its face professing to pass title, but which does not do it, either from want of title in the person making the writing, or from the defective conveyance that is used - a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law. Warlick v. Rome Loan & Fin. Co., 194 Ga. 419, 22 S.E.2d 61 (1942); Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943); Herrington v. Church of Lord Jesus Christ, 222 Ga. 542, 150 S.E.2d 805 (1966); Capers v. Camp, 244 Ga. 7, 257 S.E.2d 517 (1979).

When deed is not defective in any way, it does not in fact meet the meaning of color of title which is usually a flaw arising from a defect of conveyance or from want of title in the maker. Bracewell v. King, 147 Ga. App. 691, 250 S.E.2d 25 (1978).

Color of title may be only sign or semblance of title. Warlick v. Rome Loan & Fin. Co., 194 Ga. 419, 22 S.E.2d 61 (1942).

"Color of title" implies that sign or semblance of title is not valid to pass title. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943).

Description of property necessary.

- Deed is inadmissible as color of title unless it describes property or furnishes a key for description. McCrea v. Georgia Power Co., 187 Ga. 708, 1 S.E.2d 664 (1939).

Same certainty of description which is requisite to constitute an instrument as a conveyance of title is required in an instrument which is relied upon as color of title. McCrea v. Georgia Power Co., 187 Ga. 708, 1 S.E.2d 664 (1939).

Description not restricted by reference to another deed.

- When a reference to another deed is made merely for the purpose of showing from what source title is derived, it will not operate to restrict the description relied upon in the deed from which reference is made. Adams v. Talmadge, 240 Ga. 193, 240 S.E.2d 9 (1977).

Scope of color of title.

- Color of title will not extend beyond the description contained in the grant. Bradley v. Shelton, 189 Ga. 696, 7 S.E.2d 261 (1940).

Claimant in actual possession of a part of a tract may rely upon the presumption that the claimant's possession extends to the boundaries of the tract described in the claimant's paper title, although prescription will not run in the claimant's favor as against one having like constructive possession. Martin v. Clark, 190 Ga. 270, 9 S.E.2d 54 (1940).

When land is bounded in a deed by the land of an adjacent owner, and if such boundary of the adjacent owner is undefined, there can be no prescription under the deed as against such owner, farther than the actual possession of the grantee in the deed extends. Quarterman v. Perry, 190 Ga. 275, 9 S.E.2d 61 (1940).

One can acquire by prescription under a deed no greater title than that defined in the deed. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943).

Trial court properly granted summary judgment to the grantor's grandchildren as the grandchildren held the disputed parcel of property under color of title, via a deed to the grantor's child, albeit the fact that it was not effective as a deed conveying a present interest, for the prescription period of seven years, and the grantor's heirs at law did not contest it until suit was filed. Matthews v. Crowder, 281 Ga. 842, 642 S.E.2d 852 (2007).

Possession must meet requirements of statute.

- Because the trial court found that there was evidence to support the special master's determination that the contestant failed to establish prescriptive title to the disputed parcel, either under O.C.G.A. § 44-5-161(a) or O.C.G.A. § 44-5-164, and that the disputed parcel showed no signs of having been disturbed by any of the contestant's alleged activities thereon, the trial court properly adopted the special master's recommendations that title vested in a railroad free of any claims by the contestant, and that the contestant's affidavits should be stricken from the deed records. Thompson v. Cent. of Ga. R.R., 282 Ga. 264, 646 S.E.2d 669 (2007).

Honesty and good faith required for prescription.

- Although a given paper may constitute color of title, no prescription can be based thereon unless the claimant entered thereunder honestly and in good faith. Lee v. O'Quin, 103 Ga. 355, 30 S.E. 356 (1898); Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931).

Exceptions in statute are exhaustive.

- Exceptions specified in this statute, by which a prescriptive title will be defeated, are exhaustive, and will not be enlarged by construction. Jones v. Bibins, 56 Ga. 538 (1876) (see O.C.G.A. § 44-5-164).

Nothing but fraud, want of good faith, will vitiate claim of right of adverse possessor. Lanier v. Graham, 179 Ga. 744, 177 S.E. 574 (1934).

Fraud construed.

- Fraud contemplated by the law is such as would affect the conscience of the claimant with bad faith and moral turpitude. Brady v. Walters, 55 Ga. 25 (1875); Prater v. Cox, 64 Ga. 706 (1880); Bower v. Cohen, 126 Ga. 35, 54 S.E. 918 (1906); Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

To defeat prescriptive title, the fraud of the party claiming thereunder must be such as to charge one's conscience. Kelley v. Tucker, 175 Ga. 796, 166 S.E. 187 (1932); Lanier v. Graham, 179 Ga. 744, 177 S.E. 574 (1934).

It is not legal, but moral, fraud, a consciousness of doing wrong, which, in the origin of the possession of land prevents a prescription from running in favor of the possessor. Lanier v. Graham, 179 Ga. 744, 177 S.E. 574 (1934).

Actual fraud required to defeat prescriptive title.

- Fraud which will prevent possession of property from being the foundation of prescription must be actual or positive fraud. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

Party must be cognizant of fraud, not by constructive, but by actual notice to defeat a prescriptive title. Kelley v. Tucker, 175 Ga. 796, 166 S.E. 187 (1932); Lanier v. Graham, 179 Ga. 744, 177 S.E. 574 (1934).

Since good faith is a prerequisite to acquiring title by prescription under color as provided in this statute, one holding possession under color of title, which one knows was fraudulently procured, cannot acquire prescriptive title regardless of the period of time such possession is held. Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311 (1951) (see O.C.G.A. § 44-5-164).

If a purchaser has actual notice that the purchaser is purchasing a bad title when the purchaser takes possession, the purchaser's purchase is bad, and the purchaser goes into possession in fraud of the rights of the true owner, and the provisions of this statute cannot apply. West v. Rodahan, 46 Ga. 553 (1872); McCamy v. Higdon, 50 Ga. 629 (1874); Hunt v. Dunn, 74 Ga. 120 (1884) (see O.C.G.A. § 44-5-164).

Adverse possession of land, under written evidence of title for seven years in order to ripen into title by prescription, must be in good faith, and knowledge by a purchaser that land possessed under the purchaser's deed did not actually belong to the purchaser's grantor and could not have been conveyed will prevent such possession from ripening into a good title by prescription. Quarterman v. Perry, 190 Ga. 275, 9 S.E.2d 61 (1940).

If the color of title is fraudulent and notice thereof is brought home to the claimant before or at the time of the commencement of the claimant's possession, no prescription can be based thereon. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931).

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. Lanier v. Graham, 179 Ga. 744, 177 S.E. 574 (1934); Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

Successive possessions presumed acquired in good faith.

- When the uncontradicted evidence shows that the prescriber and each of the several persons under whom one claims maintained possession under warranty deeds executed upon a valuable consideration for successive terms less than seven years, but more than seven years in the aggregate, and it does not affirmatively appear that either of the several possessions originated in actual fraud upon the true owner, such several possessions will be presumed to be in good faith, and a verdict setting up the prescription will be demanded and may be directed by the judge. Rainey v. Whatley, 169 Ga. 172, 150 S.E. 95 (1929).

Discovery of defect after seven years possession insufficient to show fraud.

- When the evidence shows that plaintiff went into possession free from any fraud and under the belief that plaintiff owned the land, the discovery of any defects in the plaintiff's title after seven years of possession and the plaintiff's efforts to quiet the claims of others by purchase did not raise any issue of fact as to fraud or good faith for determination by the jury. Crews v. Stokes, 213 Ga. 397, 99 S.E.2d 159 (1957).

Burden of proof.

- When a party claims adversely, it is not necessary for the party to show that the party went into possession bona fide; the burden of showing fraud is upon the opposite party. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

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).

Deed executed during existing homestead constitutes color of title.

- Deed from the head of a family upon whose application a homestead had been set apart under an earlier Constitution, executed during the existence of the homestead, did not convey title to the grantee, but was sufficient to constitute color of title for one entering into possession of the land thereunder, and in such a case prescription runs in favor of the grantee against both the homestead and the title estate. Dorsey v. Dorsey, 189 Ga. 662, 7 S.E.2d 273 (1940).

Deed executed by decedent's husband.

- Quitclaim deed which a decedent's husband gave to a grantee purported to convey fee simple title to real property and gave her color of title, and because the grantee was not aware that there were other heirs who had an interest in the property, she did not commit fraud to obtain title; furthermore, she lived on the property for more than seven years, thus, she acquired title by prescription, pursuant to O.C.G.A. § 44-5-164. Gigger v. White, 277 Ga. 68, 586 S.E.2d 242 (2003).

Deed from wife to her husband for sale of her separate estate is color of title, though the deed itself be void for lack of approval. Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948).

Devise of land under duly recorded will is color of title, and adverse possession thereunder for a period of seven years ripens into a prescriptive title that is superior to the title of a grantee in a security deed executed by the testator. Blalock v. Webb, 190 Ga. 769, 10 S.E.2d 747 (1940).

Judgment of probate court purporting to vest title to land of a decedent in the decedents widow for a year's support is generally color of title on which prescription can be based. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931).

Sheriff's deed may be color of title, even though defective. Martin v. Clark, 190 Ga. 270, 9 S.E.2d 54 (1940).

Deed properly executed by a sheriff pursuant to a sale under a tax execution, even if void for any reason, is such color of title as will support prescription by seven years' adverse possession. Memory v. Walker, 209 Ga. 916, 76 S.E.2d 698 (1953).

Deed executed by unauthorized county officer.

- Even though a deed is executed by a county officer without authority, and is therefore void, the deed may, if accepted in good faith as valid, afford good color of title. Calfee v. Jones, 54 Ga. App. 481, 188 S.E. 307 (1936).

Deed executed by the administrator of decedent's estate, which purported to convey fee simple title, was sufficient as color of title, even though decedent did not own the property at the time of death - a fact unknown to all parties at the time of the transaction. Smart v. Miller, 260 Ga. 88, 389 S.E.2d 757 (1990).

Effect of deeds without defect.

- Since there was no defect in the deeds by which the parties acquired title, the deeds did not support a claim of adverse possession under color of title. Gay v. Strain, 261 Ga. App. 708, 583 S.E.2d 529 (2003).

No color of title absent sufficient identification of property.

- When a deed relied upon did not give color of title, as when the deed did not in fact describe the land in question, there could be no prescriptive title under former Civil Code 1895, § 3589 (see O.C.G.A. § 44-5-164); reliance in such a case must be had upon former Civil Code 1895, § 3588 (see O.C.G.A. § 44-5-163). Berry v. Clark, 117 Ga. 964, 44 S.E. 824 (1903). See also Bunger v. Grimm, 142 Ga. 448, 83 S.E. 200, 1916C Ann. Cas. 173 (1914); May v. Sorrell, 149 Ga. 610, 101 S.E. 535 (1919).

When the description of the property is so vague and indefinite as to afford no means of identifying any particular tract of land, the instrument is inoperative either as a conveyance or as color of title. Herrington v. Church of Lord Jesus Christ, 222 Ga. 542, 150 S.E.2d 805 (1966).

Deed lacking in a description of the land sufficiently certain to effect a means of identification of description, standing alone, is inoperative as color of title. Donaldson v. Nichols, 223 Ga. 206, 154 S.E.2d 201 (1967).

O.C.G.A. § 44-5-164 did not apply because a deed did not describe the subject property, and thus could not serve as color of title to the property. Bailey v. Moten, 289 Ga. 897, 717 S.E.2d 205 (2011).

Quitclaim deed subject to security deed.

- Quitclaim deed, reciting that it is subject to a security deed, passed title to the equity only, and is not color of title. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943).

Valid deed conveying title to land is never color of title. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943).

Will which leaves devise to others than claimant cannot be color of title to the claimant. White v. Rowland, 67 Ga. 546, 44 Am. R. 731 (1881).

Payment of taxes is not itself evidence of title, yet it is admissible as a circumstance tending to prove adverse possession. Chamblee v. Johnson, 200 Ga. 838, 38 S.E.2d 721 (1946).

Divorce decree was not written evidence of title because the decree did not award the property to the plaintiff claiming adverse possession under color of title. Coleman v. Coleman, 265 Ga. 568, 459 S.E.2d 166 (1995).

Exception.

- An exception to the rule that an equitable suit to cancel a deed is covered by a seven-year limitation period is that if suit is brought primarily for recovery of the land under an antecedent deed, against one holding, but with less than seven years' actual possession, under a junior deed. In such a case, cancellation of the subsequent deed under which the defendant claims is a mere incident to the question of title, and the fact that the deed may have been executed for more than seven years will not operate to prevent the deed's cancellation. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942).

Period of limitation for fraud is seven years from discovery.

- When fraud is charged, the period of limitations applicable to an action for fraud is the same as that which would apply to an action for the land, that is seven years from the discovery of the fraud. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946).

An action seeking cancellation of an alleged fraudulent deed must be brought within seven years from the time the fraud became known. Shirley v. Mulligan, 202 Ga. 746, 44 S.E.2d 796 (1947).

While a deed to land procured by fraud will not ripen into prescriptive title regardless of the period of time possession is held thereunder, yet an action to cancel such deed upon the ground that it was fraudulently procured must be brought within seven years from the time the fraud is discovered, and is barred thereafter. Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311 (1951).

Constructive fraud insufficient to toll statute of limitations.

- Seven-year statute of limitations was not tolled by alleged fraud on the part of plaintiff's predecessor in title since the evidence showed only constructive fraud at most, and there were no separate and independent acts of actual fraud involving moral turpitude which would have prevented, debarred, or deterred defendants from bringing their action much more timely. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986).

Period of seven years begins to run only from date of written color of title regardless of how long the claimants may have actually been in possession. Hobby v. Alford, 73 Ga. 791 (1884); Rock Run Iron Co. v. Heath, 155 Ga. 95, 116 S.E. 590 (1923).

Period running from death of life tenant.

- Prescription does not begin to run in favor of a grantee under a deed from a life tenant, against a remainderman who does not join in the deed, until the falling in of the life estate by the death of the life tenant, since until the remainderman has a right of entry and possession, the remainderman has no cause of action against such grantee. Mathis v. Solomon, 188 Ga. 311, 4 S.E.2d 24 (1939).

Earliest time at which the seven-year period of adverse holding can begin against a person with fee simple title subject to a life estate is at the date of the death of the life tenant. Howard v. Henderson, 142 Ga. 1, 82 S.E. 292 (1914); Drake v. Barrs, 225 Ga. 597, 170 S.E.2d 684 (1969).

Action not brought within statutory period barred.

- When one claiming land under written evidence of title delays for more than seven years after the knowledge of fraud to institute a suit to cancel such evidence of title upon the ground that the deed is fraudulent, the proceedings to cancel are barred by limitation. Shirley v. Mulligan, 202 Ga. 746, 44 S.E.2d 796 (1947).

Unless an action is brought within the time in which it would ripen into prescriptive title under this statute, the action will be barred. Brown v. Brown, 208 Ga. 404, 67 S.E.2d 128 (1951) (see O.C.G.A. § 44-5-164).

Am. Jur. 2d.

- 3 Am. Jur. 2d, Adverse Possession, §§ 1 et seq., 11, 13, 123 et seq.

C.J.S.

- 2 C.J.S., Adverse Possession, §§ 200 et seq., 208.

ALR.

- May adverse possession be predicated upon use or occupancy by one spouse of real property of other, 74 A.L.R. 138.

Time during which dominant and servient tracts were in same ownership or under same control as excluded or included in determining easement by prescription, 98 A.L.R. 591.

Adverse possession or prescription in respect to burial lot, 107 A.L.R. 1294.

Adoption as period of prescription for easement the period prescribed by statute of limitations with reference to adverse possession as including condition of color of title or right or other conditions imposed by that statute, 112 A.L.R. 545.

Adverse possession as affected by attempt during period thereof to change, or make more specific, the tract claimed, 115 A.L.R. 1299.

Scope and application of the doctrine that one cannot successfully claim adverse possession under color of title where one has deprived himself or been deprived of the color relied on, 136 A.L.R. 1349.

Adverse possession: mortgagee's possession before foreclosure as barring right of redemption, 7 A.L.R.2d 1131.

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale, 38 A.L.R.2d 348.

Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R.2d 826.

Adverse possession of executor or administrator or his vendee as continuous with that of ancestor and heirs, 43 A.L.R.2d 1061.

Title by or through adverse possession was marketable, 46 A.L.R.2d 544.

Judgment or decree as constituting color of title, 71 A.L.R.2d 404.

Procuring signature by fraud as forgery, 11 A.L.R.3d 1074.

Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 A.L.R.3d 1202.