O.C.G.A. § 44-5-172 (2019)

Annotations

JUDICIAL DECISIONS Nature of successive possessions. - Although it is unnecessary that adverse possession be maintained for the statutory period by the same person, since continuity may be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between the people, still it is necessary that the several possessions be of such a character as to the foundation of prescriptive title. Campbell v. Gregory, 200 Ga. 684, 38 S.E.2d 295 (1946). Requirement that prior possession be accompanied by claim of right. - For owners to tack onto the period of their possession the time that the property was used by a tenant of the owner, the burden is upon them to show by a preponderance of the evidence that prior possession was of such character as to be the foundation of prescription, and be adverse, and the foundation must meet all the requirements of former Code 1933, § 85-402 (see O.C.G.A. § 44-5-161), including the requirement that the possession must be accompanied by a claim of right. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953). Reference in deed to former conveyance must be mentioned in conveyance by

nonpossessor. - Mere color of title held by one who never takes possession, but who (without referring in one’s deed to the former conveyance) subsequently conveys to another, who takes possession under such a conveyance, does not create by virtue of law any color of title in favor of the latter, additional to that arising from the conveyance. Turner v. Neisler, 141 Ga. 27, 80 S.E. 461 (1913). See also Walker v. Steffes, 139 Ga. 520, 77 S.E. 580 (1913). Continuous successive possession of chattels tacked to make up prescribed time of adverse holding. - As in case of adverse possession of realty, adverse possession of chattels for the statutory period operates not merely to bar the remedy but vests absolute title in the possessor, which is equally available for attack or defense, and continuous possession in any one person is not necessary for the acquisition of title by adverse possession if there is a privity between successive occupants holding adversely to the true title continuously, the successive periods of occupation may be united or tacked to each other to make up the time of adverse holding prescribed by the statute as against

the title. Woodcliff Gin Co. v. Kittles, 173 Ga. 661, 161 S.E. 119 (1931). Innocent purchaser cannot tack on possession of grantor whose possession originated in fraud. - An inchoate prescriptive title may be transferred by a possessor to a successor so that the successive possessions may be tacked to make out the prescription, except that the innocent purchaser may not tack to the purchaser’s own the possession of a grantor whose possession originated in fraud of the true owner. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945). One entering into portion of lot under unrecorded deed cannot prescribe against contiguous lots until the deed is recorded; when the deed is not recorded, the incomplete prescriptive title of one’s predecessor cannot inure to one’s benefit insofar as the constructive possession of the contiguous lots is concerned. Campbell v. Gregory, 200 Ga. 684, 38 S.E.2d 295 (1946). Inchoate prescriptive title was transferred by the possessor when successor produced stock certificates with blank assignments and a power of attorney to transfer the shares on the books of the company signed by original

issue. Woodcliff Gin Co. v. Kittles, 173 Ga. 661, 161 S.E. 119 (1931). Evidence sufficient to show ripening of prescriptive title. - When the evidence conclusively showed that the defendant and 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). Cited in Reynolds v. Smith, 186 Ga. 838, 199 S.E. 137 (1938); Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967); Adams v. Talmadge, 240 Ga. 193, 240 S.E.2d 9 (1977); Swicord v. Hester, 240 Ga. 484, 241 S.E.2d 242 (1978); Nebb v. Butler, 257 Ga. 145, 357 S.E.2d 257 (1987); BMH Real Estate P’ship v. Montgomery, 246 Ga. App. 301, 540 S.E.2d 256 (2000); Trammell v. Whetstone, 250 Ga. App. 503, 552 S.E.2d 485 (2001).

RESEARCH REFERENCES Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, § 76 et seq. C.J.S. - 2 C.J.S., Adverse Possession, § 154 et seq. ALR. - 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 ALR 591.

Adverse possession: right of remainderman or reversioner to tack his possession to that of life tenant, 150 ALR 557. Tacking as applied to prescriptive easements, 72 ALR3d 648.