Provisions on cotenants construed in connection with this section.

- Former Code 1933, §§ 85-1001, 85-1003, and 85-1005 (see O.C.G.A. §§ 44-6-120,44-6-121, and44-6-123), relating to the rights of cotenants, must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169) relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945); 9 Ga. B.J. 88 (1946).

Section has been applied in favor of the following persons: (1) a grantor after making a deed, Kent v. Simpson, 142 Ga. 49, 82 S.E. 440 (1914); (2) a trustee holding through his tenants, Bridger v. Exchange Bank, 126 Ga. 821, 56 S.E. 97, 115 Am. St. R. 118, 8 L.R.A. (n.s.) 463 (1906); (3) a cestui que trust in possession, Broadwell v. Maxwell, 30 Ga. App. 738, 119 S.E. 344 (1923); and (4) a vendee, under bond for title, Burr v. Toomer, 103 Ga. 159, 29 S.E. 692 (1897); Georgia State Bldg. & Loan Ass'n v. Faison, 114 Ga. 655, 40 S.E. 760 (1902); Mayor of Savannah v. Standard Fuel Supply Co., 151 Ga. 145, 106 S.E. 178 (1921).

For an exhaustive review of cases decided upon the principle inculcated by this statute, see McDonald v. Dabney, 161 Ga. 711, 132 S.E. 547 (1926) (see O.C.G.A. § 44-5-169).

Cited in De Loach v. Sikes, 169 Ga. 465, 150 S.E. 591 (1929); James v. Hudson, 170 Ga. 321, 152 S.E. 829 (1930); Walker v. First Nat'l Bank, 178 Ga. 542, 173 S.E. 430 (1934); Fite v. Walker, 183 Ga. 46, 187 S.E. 95 (1936); Williford v. Swint, 183 Ga. 375, 188 S.E. 685 (1936); Fulmore v. Macon Fed. Savs. & Loan Ass'n, 191 Ga. 151, 11 S.E.2d 790 (1940); Joel v. Publix-Lucas Theater, Inc., 193 Ga. 531, 19 S.E.2d 730 (1942); Pope v. Williams, 70 Ga. App. 834, 29 S.E.2d 808 (1944); Davis v. Akridge, 199 Ga. 867, 36 S.E.2d 102 (1945); Toms v. Knighton, 199 Ga. 858, 36 S.E.2d 315 (1945); Rogers v. Manning, 200 Ga. 844, 38 S.E.2d 724 (1946); Smith v. Lanier, 202 Ga. 165, 42 S.E.2d 495 (1947); Clarke v. Phillips, 204 Ga. 772, 51 S.E.2d 848 (1949); Lewis v. Lewis, 210 Ga. 330, 80 S.E.2d 312 (1954); Phillips v. Wheeler, 212 Ga. 603, 94 S.E.2d 732 (1956); Allen v. Bobo, 215 Ga. 707, 113 S.E.2d 138 (1960); Ammons v. Central of Ga. Ry., 215 Ga. 758, 113 S.E.2d 438 (1960); Williamson v. Floyd County Wildlife Ass'n, 215 Ga. 789, 113 S.E.2d 626 (1960); Seay v. Malone, 219 Ga. 149, 132 S.E.2d 261 (1963); Waddell v. City of Atlanta, 121 Ga. App. 94, 172 S.E.2d 862 (1970); Davis v. Leach, 228 Ga. 139, 184 S.E.2d 454 (1971); Gauker v. Eubanks, 230 Ga. 893, 199 S.E.2d 771 (1973); Mrs. E.B. Smith Realty Co. v. Hubbard, 130 Ga. App. 672, 204 S.E.2d 366 (1974); Cloud v. Jacksonville Nat'l Bank, 239 Ga. 353, 236 S.E.2d 587 (1977); Pierce v. Thomas, 258 Ga. 469, 369 S.E.2d 742 (1988).

Possession must be actual, exclusive, and unambiguous.

- In order for the possession to have the effect of notice possession must be actual, open, visible, exclusive, and unambiguous. McDonald v. Dabney, 161 Ga. 711, 132 S.E. 547 (1926).

To operate as notice, the possession must be open, visible, exclusive, unambiguous, and not liable to be misconstrued or misunderstood. It must not be a mixed or ambiguous possession. Yancey v. Harris, 234 Ga. 320, 216 S.E.2d 83 (1975).

In order for possession to have the effect of notice, it must be actual, open, visible, exclusive, and unambiguous. Bacote v. Wyckoff, 251 Ga. 862, 310 S.E.2d 520 (1984).

"Possession," such as would constitute notice, is restricted to "actual possession," for the notice is of whatever right the occupant has. Chandler v. Georgia Chem. Works, 182 Ga. 419, 185 S.E. 787 (1936).

Actual possession by the cestui que trust is constructive notice to a purchaser of the occupant's equitable title, and a purchaser bona fide and for value from the trustee takes with notice of the equitable title. Bank of Arlington v. Sasser, 182 Ga. 474, 185 S.E. 826 (1936).

Children's residence with father not sufficient to put purchaser upon notice of children's equity.

- When minor children reside with their father, who is in possession of land to which he has the legal title, the children's residence on the land is not sufficient to put a purchaser from the father upon notice or inquiry as to any secret equity the children might have therein. Citizens' Bank v. Taylor, 169 Ga. 203, 149 S.E. 861 (1929).

Possession of land must have element in it indicative that occupancy is exclusive in nature. McDonald v. Taylor, 200 Ga. 445, 37 S.E.2d 336 (1946).

Exclusive nature of occupancy.

- Possession of land effectual to impute notice must have some element in it indicative that the occupancy is exclusive in nature. Manning v. Manning, 135 Ga. 597, 69 S.E. 1126 (1911).

Possession of land which will be notice of the occupant's title must have some element in it indicative that the occupancy is exclusive in its nature. McDonald v. Dabney, 161 Ga. 711, 132 S.E. 547 (1926).

Effect of occupancy connected with another with relationship sufficient to account for situation.

- Correct rule is that when the occupation by one is not exclusive, but in connection with another, with respect to whom there exists a relationship sufficient to account for the situation, and the circumstances do not suggest an inconsistent claim, then such a possession will not give notice of a right by an unrecorded grant. If, of the two occupants, one has the record title, a purchaser has the right to assume that the other has no title. Yancey v. Harris, 234 Ga. 320, 216 S.E.2d 83 (1975).

Possession under unrecorded deed, together with grantor, not constructive notice.

- Possession of land by the grantee, holding under an unrecorded deed, together with the grantor, is not constructive notice of the unrecorded deed to a subsequent purchaser. Bell v. Bell, 178 Ga. 225, 172 S.E. 566 (1934).

Possession of land must be open, visible, exclusive, unambiguous, and not liable to be misconstrued or misunderstood. It must not be a mixed or ambiguous possession. Accordingly, possession of land by a grantee, holding under an unrecorded deed, together with the grantor, is not constructive notice of the unrecorded deed to a subsequent purchaser. McDonald v. Taylor, 200 Ga. 445, 37 S.E.2d 336 (1946).

Purchaser from landlord takes with notice of tenant's rights.

- When one purchases realty from a landlord, one takes with notice of whatever right or title the tenant in possession at the time may have. Blanton v. Moseley, 133 Ga. App. 144, 210 S.E.2d 368 (1974).

Purchaser with absolute, recorded deed authorized to assume tenant's possession not adverse.

- Possession of the tenant, being the possession of the landlord, and the landlord having apparently executed an absolute deed conveying to another, and that deed being recorded, the purchaser would be authorized to assume that, as a matter of law, the possession of the tenant was held under the grantee, and not adversely to the latter's title. Chestnut v. Weekes, 180 Ga. 701, 180 S.E. 716 (1935).

Possession at time purchaser obtains title charges notice.

- Prior possession of land is not notice to a purchaser; possession of real property which will charge a purchaser with notice is possession at the time the purchaser obtains title. Wood v. Bowden, 182 Ga. 329, 185 S.E. 516 (1936); McDonald v. Taylor, 200 Ga. 445, 37 S.E.2d 336 (1946).

Builder's possession of a lot in a subdivision which was not a development of the builder did not give notice of the builder's ownership of that lot. Palmer v. Forrest, Mackey & Assocs., 251 Ga. 304, 304 S.E.2d 704 (1983).

Party not estopped to claim land by allowing legal title in another.

- Statute establishes a flat rule that one is not estopped to claim land by the mere act of allowing legal title to stand in the name of another. Yancey v. Harris, 234 Ga. 320, 216 S.E.2d 83 (1975) (see O.C.G.A. § 44-5-169).

Actual possession is notice to the world of the right or title of the occupant. Chandler v. Georgia Chem. Works, 182 Ga. 419, 185 S.E. 787 (1936); Perimeter Dev. Corp. v. Haynes, 234 Ga. 437, 216 S.E.2d 581 (1975).

Possession is not only notice of the rights of the possessor, but of those under whom the possessor claims. Walker v. Neil, 117 Ga. 733, 45 S.E. 387 (1903); Austin v. Southern Home Bldg. & Loan Ass'n, 122 Ga. 439, 50 S.E. 382 (1905); McDonald v. Dabney, 161 Ga. 711, 132 S.E. 547 (1926).

Bona fide possession under unrecorded deed is notice of character and extent of occupant's title as to the whole lot described. Terrell v. McLean, 130 Ga. 633, 61 S.E. 485 (1908).

Possession of land is generally notice of whatever right or title the occupant has, and to have this effect the possession must have some element in it indicative that the occupancy is exclusive in its nature, and such possession must be open, visible, exclusive, unambiguous, and not liable to be misconstrued or misunderstood. Bell v. Bell, 178 Ga. 225, 172 S.E. 566 (1934).

Notice not limited to what discovered by examining public records.

- Possession of land is notice of whatever right or title the occupant has, and such a notice is not limited to what would be discovered by an examination of the public records. Moore v. Hartford Accident & Indem. Co., 102 Ga. App. 514, 117 S.E.2d 206 (1960).

Mere naked possession may in time ripen into perfect and indefeasible title.

- Actual occupation or mere naked possession of land is prima facie evidence of legal title in the possessor, and it may by length of time ripen into a perfect and indefeasible title, and if one dies in possession of land under a claim of ownership, such possession is prima facie evidence of title in the occupant and can be the basis of recovery in ejectment, unless a better title by adverse title or otherwise appears. Hicks v. Hicks, 193 Ga. 382, 18 S.E.2d 763 (1942).

Purchaser or contractor for lien must inquire into possessor's rights.

- It is incumbent upon one who purchases or contracts for a lien on land to inquire into the right of any person in possession thereof. Neal v. Jones, 100 Ga. 765, 28 S.E. 427 (1897); Yancey v. Montgomery & Young, 173 Ga. 178, 159 S.E. 571 (1931); Collins v. Freeman, 226 Ga. 610, 176 S.E.2d 704 (1970).

Knowledge chargeable to inquirer not limited to that in public records.

- Knowledge chargeable to a party after the party is put on inquiry is not limited to such knowledge only as would be gained by an examination of the public records. Dyal v. McLean, 188 Ga. 229, 3 S.E.2d 571 (1939).

Presumption that inquiry will disclose real adverse holder.

- Principle upon which the rule embodied in this statute is found is that adverse possession of land is notice of whatever facts in reference to the title would be developed by an inquiry of the person in possession, the presumption being that an inquiry of one will disclose how, or under what right, one holds possession, and therefore lead to the discovery of the real adverse holder, whether one or another for whom one holds possession. Hall v. Turner, 198 Ga. 763, 32 S.E.2d 829 (1945) (see O.C.G.A. § 44-5-169).

Grantor must take step beyond mere possession.

- While grantor may not adversely possess against a grantee where the grantor simply remains in possession after a conveyance, where a grantor in possession takes some additional step which gives unequivocal notice that one is claiming property as one's own, the prescriptive period begins to run. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69, 311 S.E.2d 808 (1984).

Section inapplicable to party in possession against own warranty deed.

- Provisions of this statute can have no application to the case of a party who is endeavoring to avail oneself of one's possession in the fact of one's own warranty deed, spread on the record, as against an innocent purchaser for value and without notice. Malette v. Wright, 120 Ga. 735, 48 S.E. 229 (1904) (see O.C.G.A. § 44-5-169).

Possession of land remaining with grantor and never surrendered is deemed as held under grantee. Such possession will be construed as consistent with the grantor's recorded deed, and is not notice to an innocent purchaser from the grantee of any mistake in the deed whereby a larger tract was inadvertently conveyed than the parties to the deed intended. Under these circumstances, such possession, although remaining with the grantor and never surrendered, is not deemed adverse to the title of the grantor's grantee, and a prescriptive title in favor of the grantor can never ripen under such possession. Stepp v. Stepp, 195 Ga. 595, 25 S.E.2d 6 (1943).

That grantor found in possession after delivery suggestive of retention of some interest.

- An absolute deed divests the grantor of the right of possession, as well as of the legal title, and when one is found in possession after delivery of one's deed, it is a fact inconsistent with the legal effect of the deed, and is suggestive that one still retains some interest in the premises; to say that the grantor is estopped by this deed is begging the question, for one's possession is notice to third parties of one's rights, and there is no principle of estoppel that would prevent one from asserting against purchasers or creditors any claim to the premises which one might assert against one's grantee. Chandler v. Georgia Chem. Works, 182 Ga. 419, 185 S.E. 787 (1936).

Continued possession by grantor demands inquiry from purchaser.

- Continued possession of a grantor who executes an absolute deed demands that one who purchases from the grantee inquire into the right of one's occupancy. Chandler v. Georgia Chem. Works, 182 Ga. 419, 185 S.E. 787 (1936).

"Absolute" deed may be shown to be for grantor-possessor's benefit.

- Deed "absolute" in form may be shown by parol evidence to have been made in trust for the benefit of the grantor if the maker remains in possession of the land. Chandler v. Georgia Chem. Works, 182 Ga. 419, 185 S.E. 787 (1936).

When a vendor remains in possession after an absolute sale, this is prima facie evidence of fraud, which may be explained, and after possession is proved, the burden of explaining it rests upon those claiming under the sale. Robinson v. Wright, 217 Ga. 199, 121 S.E.2d 640 (1961).

Possession retained by the vendor, after the absolute sale of real or personal property, is prima facie evidence of fraud, which may be explained, and after the possession is proven, the burden of explaining it rests upon those who claim under the sale. Perimeter Dev. Corp. v. Haynes, 234 Ga. 437, 216 S.E.2d 581 (1975).

Possession remaining with vendor after conveyance evidence of fraud.

- Possession of property, real or personal, remaining with the vendor after an absolute deed of conveyance, is evidence of fraud. Perimeter Dev. Corp. v. Haynes, 234 Ga. 437, 216 S.E.2d 581 (1975).

Proof of possession must be clear and satisfactory.

- Possession of land which will be notice of the occupant's right to title must be actual, open, visible, exclusive, and unambiguous at the time of the land's purchase by another, and the protection which the registration law gives to one taking title to lands upon the faith of the record title requires that proof of such possession be clear and satisfactory. Anderson v. Barron, 208 Ga. 785, 69 S.E.2d 874 (1952).

Inquiry notice based on possession.

- Trial court erred by granting summary judgment to the plaintiff because the record showed that there was an issue of fact as to whether the defendants' possession of the property put the plaintiff on inquiry notice of the defendants' title despite the defendants' deed not being recorded. Caraway v. Spillers, 332 Ga. App. 588, 774 S.E.2d 162 (2015).

Onus of explanation, after possession is proven, is upon the grantee. Perimeter Dev. Corp. v. Haynes, 234 Ga. 437, 216 S.E.2d 581 (1975).

When no proof of title by plaintiff, claimant bound to make good title.

- Burden of proof in the trial of claim cases is on the plaintiff, when the defendant is not in possession of the property. The bare possession of the property by the defendant is evidence of defendant's ownership, and the claimant is bound, when that is shown, without any proof of title in the claimant by the plaintiff, to make good title. Hicks v. Hicks, 193 Ga. 382, 18 S.E.2d 763 (1942).

Subsequent purchaser of timber leases takes subject to first lessee in possession.

- When a lessee of timber for turpentine purposes, while in possession of the timber under recorded leases, obtained and paid for extensions of such leases for one year, and after the purchase of such extensions, which were not recorded, a third person acquired by purchase from the same lessors conflicting leases on the same timber, to commence immediately after the expiration of the recorded leases of the first lessee, it could not be said as a matter of law that the subsequent purchaser, in the absence of an inquiry of the first lessee as to that lessee's rights in the timber as evidenced by that lessee's possession and use of the same for turpentine purposes, did not take subject to the interest of the latter under the latter's unrecorded extensions. Dyal v. McLean, 188 Ga. 229, 3 S.E.2d 571 (1939).

Church property held in trust.

- In a quiet title action involving church property, the trial court erred in making the legal conclusion that the founding pastor held the church property in fee simple absolute instead of in trust for and on behalf of the religious corporation as Georgia law expressly authorizes the creation of religious land trusts and the deed expressly referred to the pastor as a trustee. As such, the trial court erred in ruling that fee simple absolute title to the property vested in another congregation by virtue of a 1998 warranty deed executed by the pastor as the pastor had no legal authority to transfer the property without the consent and approval of the religious corporation. Second Refuge Church of Our Lord Jesus Christ, Inc. v. Lollar, 282 Ga. 721, 653 S.E.2d 462 (2007).

Failure to probate a will meant notice lacking.

- Trial court did not err in granting a bank's motion for summary judgment in the bank's quiet title action against a testator's niece and great-niece on the ground that under O.C.G.A. § 44-2-4(a), the priority of a security deed the testator's stepson gave to a mortgage company, which assigned its interest in the property to the bank, was protected from the interests the niece and great-niece held that were grounded in the testator's unrecorded will because there was nothing in the record that would render O.C.G.A. § 44-2-4(a) inapplicable since the notice created by the possession of the niece and great-niece was only constructive notice, and there was no evidence that the company had any actual notice of the will or of the interests created thereby; the statute applies equally to give protection to those who take an interest in realty when there are other interests that exist, but are not of record, because of a failure to probate a will. Riggins v. Deutsche Bank Nat'l Trust Co., 288 Ga. 850, 708 S.E.2d 266 (2011).

Successor tenant in common by gift takes with notice of other tenant's equities.

- When a successor tenant in common acquired that tenant's interest by deed of gift, that tenant took not as a bona fide purchaser, but with notice of whatever equities the other original tenant in common had in the property. Bowers v. Bowers, 208 Ga. 85, 65 S.E.2d 153 (1951).

Donee by mere parol gift not vested with any rights against subsequent purchaser.

- Possession of land under a voluntary agreement, based upon a meritorious consideration, with valuable improvements made upon the faith thereof, will invest the holder with such right or equity that the holder cannot be ousted by the donor, or by a purchaser from the holder with notice; a mere parol gift, however, is not, without more, sufficient to pass title, nor will it vest in the donee any right or equity as against a subsequent purchaser from the donor, with or without notice. Beetles v. Steadham, 186 Ga. 110, 197 S.E. 270 (1938).

Parol gift becomes irrevocable when donee takes possession and makes valuable improvements.

- Oral gift of land becomes complete and irrevocable when the donee takes possession of the donated premises and, on the faith of the gift, makes valuable improvements, and, as against the donor and those claiming under the donor with notice, a completed gift of land invests the donee with a perfect equitable title. Sharpton v. Givens, 209 Ga. 868, 76 S.E.2d 806 (1953).

Sufficiency of improvements jury question.

- Sufficiency of improvements which the donee must have made to complete a parol gift of land is a question for the jury to determine. Barfield v. Hilton, 235 Ga. 407, 219 S.E.2d 719 (1975).

Evidence sufficient to find completed gift.

- In an action to enjoin trespass on a certain acre of land, since the plaintiff's predecessor in title had orally given the land to a church for cemetery uses, pursuant to which corner stakes and lines were set up and two graves placed thereon, and there was testimony that the plaintiff, prior to the plaintiff's purchase of a larger tract of which the acre was a part, was informed of this gift and saw the graves, a verdict for the defendants was authorized by the evidence. Sharpton v. Givens, 209 Ga. 868, 76 S.E.2d 806 (1953).

Possession of wife alone not notice to third party.

- When the husband and the wife were in possession of land, the record title being in the husband, and the husband offered to sell and executed to a third party the bond for title, the possession of the wife did not constitute notice of her right and title to the land. Gleaton v. Wright, 149 Ga. 220, 100 S.E. 72 (1919).

Effect of buyer's failure to make inquiry.

- When the buyer failed to make inquiries as to the extent of a husband's interest therein, he is charged with notice of whatever facts would be developed by such an inquiry. Austin v. Southern Home Bldg. & Loan Ass'n, 122 Ga. 439, 50 S.E. 382 (1905).

Title of lender to husband with record title superior to wife's equitable title.

- When a husband and wife are in possession of land and the record title thereto is in the husband, who borrows money from another and executes his deed to the land to the lender to secure the money so borrowed, the title of the lender is superior to the wife's equitable title of which the lender had no notice, growing out of the fact that the wife's money had paid for the land. Federal Land Bank v. Harris, 176 Ga. 732, 168 S.E. 778 (1933).

When wife in continuous actual possession under trust agreement without husband, husband not presumed possessor.

- When a wife had been in continuous actual possession of the premises in dispute, claiming under a trust agreement, from a time prior to the execution of a security deed to a bank, up to the trial of the case, and it not otherwise appearing that her possession was with or in the right of her husband, the rule that possession by the husband with the wife is presumptively his possession does not apply. Bank of Arlington v. Sasser, 182 Ga. 474, 185 S.E. 826 (1936).

Possession of land by the tenants of the wife gave notice to the purchaser under an execution sale against the husband. Sikes v. Seckinger, 164 Ga. 96, 137 S.E. 833 (1927).

Prima facie case for widow's year's support when execution on deceased husband's possessed property.

- When an execution is based on a judgment for a year's support and is levied on the land as the property of the deceased husband, and it is made to appear from the evidence that the husband claimed the property as his own, was in possession of it for many years, and died in possession, a prima facie case is made out for the widow, the burden shifts, and it is then incumbent upon the other claimants to establish their title. Hicks v. Hicks, 193 Ga. 382, 18 S.E.2d 763 (1942).

Am. Jur. 2d.

- 3 Am. Jur. 2d, Adverse Possession, §§ 15, 17 et seq., 41, 42, 62 et seq., 154.

C.J.S.

- 2 C.J.S., Adverse Possession, §§ 55, 56. 41 C.J.S., Husband and Wife, §§ 30, 31, 41.

ALR.

- Writing as essential to color of title in adverse occupant of land, 2 A.L.R. 1457.

Right of wife to exclude husband from possession, use, or enjoyment of family residence or homestead owned by her, 21 A.L.R. 745.

Dower as affected by adverse possession, 41 A.L.R. 1115.

Presumption of ownership of personal property as between husband and wife, 111 A.L.R. 1374.

Possession of land by cotenant after acquisition of interest of another cotenant as notice to subsequent purchaser from or creditor of latter, 162 A.L.R. 209.

Occupancy of premises by both record owner and another as notice of title or interest of latter, 2 A.L.R.2d 857.

Possession of real property by tenant as charging another purchaser with notice of tenant's agreement with owner-landlord to purchaser of property, 37 A.L.R.2d 1112.