O.C.G.A. § 44-6-123 (2019)

Annotations

Cross references. - Adverse possession generally, § 44-5-160 et seq. JUDICIAL DECISIONS Analysis General Consideration What Constitutes Ouster General Consideration Possession of land as notice of right and title. - Former Code 1933, § 85-1005 (see O.C.G.A. § 44-6-123) 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). Adverse possession found. - 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). Applicability when alleged cotenant claims

as sole grantee. - Section inapplicable when alleged cotenant in possession never expressly or impliedly recognized such a relation, but claimed title and held possession under a deed made to that cotenant as the sole grantee. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942); Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948) (see O.C.G.A. § 44-6-123). When a person claiming prescriptive title does not enter possession as a cotenant but as owner of the entire estate under color of title, such possession is adverse to those who might be otherwise treated as cotenants, and the party in possession is not subject to the conditions of O.C.G.A. § 44-6-123. Mattison v. Barbano, 249 Ga. 271, 290 S.E.2d 41 (1982). When the copossessors were never cotenants, O.C.G.A. § 44-6-123 has no application. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983). Mineral owner and landowners are not

General Consideration (Cont’d) tenants in common in the usual sense since the landowners own the fee subject to the rights of the mineral owner in one-half of the mineral interests. Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170 (1983). Tenants in common occupy a fiduciary relationship to each other, with respect to their interest in the common property and the common title under which the tenants hold, that it would be inequitable to permit one of the tenants, without the consent of the others, to buy an outstanding adversary’s claim to the common estate and assert it for one’s exclusive benefit, to the injury or prejudice of one’s cotenants; and if one cotenant does actually acquire such a claim, the cotenant is, unless the contrary appears, to be regarded as holding it in trust for the benefit of the cotenants in proportion to their respective interests. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972). Elements of adverse possession against cotenant. - In order for one cotenant to prescribe against another, O.C.G.A. § 44-6-123 requires actual ouster, exclusive possession after demand, or express notice of adverse possession, in addition to the usual elements of adverse possession. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983). Party who asserts a claim of title by adverse possession against a cotenant has the burden of proving not only the usual elements of prescription, but also at least one of the elements of O.C.G.A. § 44-6-123. Wright v. Wright, 270 Ga. 530, 512 S.E.2d 618 (1999). Seven years possession required to get title. - Purchaser must maintain actual adverse possession for seven years under color of title to get title. Doe v. Roe, 46 Ga. 9 (1872); Morgan v. Mitchell, 104 Ga. 596, 30 S.E. 792 (1898). Exclusive possession by a cotenant alone will be presumed not an adverse holding, but simply one in support of the common title. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951). Silent and peaceable possession of one tenant, with no act which can amount to an

ouster of one’s cotenants, is not adverse. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972). Demand required. - Plaintiffs could not contend that the defendant was ‘‘in exclusive possession after demand,’’ because the evidence showed no demand by the plaintiff upon the defendant for the possession of their interest in the land. Bowman v. Owens, 133 Ga. 49, 65 S.E. 156 (1909). Exclusive possession after demand required. - Correct statement of the law is that the cotenant must show exclusive possession after demand, and not that the cotenant demanded such exclusive right. Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349 (1930). Notice of ouster held insufficient. - Sale of one tenant’s interest at judicial sale, without actual possession being taken, is insufficient notice of ouster to the cotenant as to start statute to running. Harriss v. Howard, 126 Ga. 325, 55 S.E. 59 (1906). Party who alleges title by prescription has burden of proving title, and when it is contended that a former tenant in common acquired prescriptive title as against one’s former cotenants, the party asserting such contention has the burden of proving not only the usual elements of prescription but also at least one of the conditions stated in this statute as to cotenants. Harris v. Mandeville, 195 Ga. 251, 24 S.E.2d 23 (1943); Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972); Jordan v. Robinson, 229 Ga. 761, 194 S.E.2d 452 (1972); Barfield v. Hilton, 235 Ga. 407, 219 S.E.2d 719 (1975) (see O.C.G.A. § 44-6-123). Person claiming prescriptive title against cotenant has burden of showing not only the usual elements of prescription under O.C.G.A. § 44-5-161 but in addition thereto at least one of the conditions stated in O.C.G.A. § 44-6-123. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982). Knowledge of adverse claim is question for jury. Gann v. Runyan, 134 Ga. 49, 67 S.E. 435 (1910). Substitution of ‘‘actual notice’’ for ‘‘express notice’’ in jury charge is not error.

David v. Tucker, 140 Ga. 240, 78 S.E. 909 (1913). Exception to statute inapplicable. - When the mother and children obtained possession of the decedent’s property by falsely informing the probate court that they were the only heirs at law when the son was also an heir at law, the trial court improperly applied the exception to O.C.G.A. § 44-6-123, as questions of fact remained as to whether the wife and children took possession of the subject property with implied knowledge that there was a tenancy in common with the son as a joint heir. Ponder v. Ponder, 275 Ga. 616, 571 S.E.2d 343 (2002). Cited in Coppedge v. Coppedge, 144 Ga. 466, 87 S.E. 392 (1915); Cowart v. Strickland, 170 Ga. 530, 153 S.E. 415 (1930); Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932); Veal v. Veal, 192 Ga. 503, 15 S.E.2d 725 (1941); Nixon v. Nixon, 192 Ga. 629, 15 S.E.2d 883 (1941); Yeager v. Weeks, 74 Ga. App. 84, 39 S.E.2d 84 (1946); King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948); Ballenger v. Houston, 207 Ga. 438, 62 S.E.2d 189 (1950); Andrews v. Walden, 208 Ga. 340, 66 S.E.2d 801 (1951); Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951); Brown v. Brown, 209 Ga. 620, 75 S.E.2d 13 (1953); Lankford v. Dockery, 87 Ga. App. 813, 75 S.E.2d 340 (1953); Varellas v. Varellas, 218 Ga. 125, 126 S.E.2d 680 (1962); Crosby v. Crosby, 224 Ga. 109, 160 S.E.2d 362 (1968); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Thomas v. Hooks, 231 Ga. 409, 202 S.E.2d 92 (1973); Lovin v. Poss, 240 Ga. 848, 242 S.E.2d 609 (1978); Bailey v. Johnson, 245 Ga. 823, 268 S.E.2d 147 (1980); Love v. Love, 259 Ga. 423, 383 S.E.2d 329 (1989). What Constitutes Ouster To constitute disseizin of a tenant in common by one’s cotenants, there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the cotenants that an adverse possession and an actual disseizin are intended to be asserted against them. Nor will the making of ordinary improvements by a tenant in possession constitute an ouster of other cotenants.

Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946). Void deed will operate as color of title. Davis v. Harnesberger, 211 Ga. 625, 87 S.E.2d 841 (1955). Identification of premises necessary for color of title. - Color of title cannot arise or serve to give right of possession when it is not possible to identify the premises. Newsome v. Moore, 166 Ga. 301, 143 S.E. 400 (1928). Deed pursuant to court order. - When a deed specifically stated that the property was ‘‘conveyed pursuant to the order’’ granting the year’s support, grantee was only conveyed such interest as was set aside to the widow under the year’s support order, which was an undivided interest equal to that of each of the widow’s minor children; therefore, grantee could prescribe against the grantee’s cotenants (the children) only by showing ouster, exclusive possession after demand, or express notice of adverse possession. Mattison v. Barbano, 249 Ga. 271, 290 S.E.2d 41 (1982). Possession of more than proportionate share. - That one cotenant may occupy more than one’s proportionate share of the property, or even that one may be in possession of all of the property, does not necessarily imply an ouster, the presumption being that one’s possession is not adverse, but is in common with the others, or for the common benefit, unless and until the contrary appears. Chambers v. Schall, 209 Ga. 18, 70 S.E.2d 463 (1952). Party who asserts a claim of title by adverse possession against a cotenant has the burden of proving not only the usual elements of prescription, O.C.G.A. § 44-5-161, but also at least one of the elements of O.C.G.A. § 44-6-123. But, when a person claiming prescriptive title does not enter possession as a cotenant but as the owner of the entire estate under color of title, such possession is adverse to those who might be otherwise treated as cotenants, and the party in possession is not subject to the conditions of O.C.G.A. § 44-6-123. Gigger v. White, 277 Ga. 68, 586 S.E.2d 242 (2003). Conveyance to third party is ouster. - Statute means that when two persons hold as cotenants, one cannot prescribe against the other, except under those circumstances. But if one cotenant makes a deed to the

What Constitutes Ouster (Cont’d) whole property and the grantee takes possession and holds adversely, not as a cotenant, but as sole owner, this is such an ouster as that prescription will run. See Doe v. Roe, 46 Ga. 9 (1872); Doe v. Roe, 46 Ga. 593 (1872); Cain v. Furlow, 47 Ga. 674 (1873); Norris v. Dunn, 70 Ga. 796 (1883); McDowell v. Sutlive, 78 Ga. 142, 2 S.E. 937 (1886); Street v. Collier, 118 Ga. 470, 45 S.E. 294 (1903) (see O.C.G.A. § 44-6-123). If the administrator of a deceased cotenant sells and makes to the purchaser a deed to the entire property, and one claiming under such purchaser holds possession thereof under a duly recorded deed conveying the entire property, not as a cotenant but as sole owner of the entire property, there is an actual ouster of the other cotenants, and the latter have the right to sue for the possession of their interest. Bowman v. Owens, 133 Ga. 49, 65 S.E. 156 (1909). When a tenant in common conveys the whole lot to a third person, and the grantee takes possession, claiming the entire lot as the grantee’s own, this action constitutes a disseizin and ouster of the other tenants in common, and they are barred from asserting their right to such property after the expiration of seven years. Broadwater v. Parker, 209 Ga. 801, 76 S.E.2d 402 (1953); Davis v. Harnesberger, 211 Ga. 625, 87 S.E.2d 841 (1955). When the evidence shows that there was an actual ouster or express knowledge of adverse possession, a deed executed by a cotenant to the whole of the property is good as color of title as against the other cotenants. Jordan v. Robinson, 229 Ga. 761, 194 S.E.2d 452 (1972). Because the parties were cotenants under O.C.G.A. § 44-6-120, and one of the cotenants was on notice as to the other cotenant’s heirs’ adverse possession under O.C.G.A. § 44-6-123, which included conveying the timber on the land to a company, but failed to assert rights to the property in the prescribed time, the heirs established prescriptive title in the land. Williams v. Screven Wood Co., 279 Ga. 609, 619 S.E.2d 641 (2005). Erecting fence to divide common property. - Entering into possession of a portion of a cemetery lot, which is enclosed by a

fence, by one claiming to be the owner of such portion, and erecting a substantial iron fence so as to divide the part so claimed from the remaining part of the lot, is, as to that peculiar character of property, an act showing adverse possession of a public nature, totally irreconcilable with cotenancy, and amounts to an actual ouster of others claiming to be tenants in common with the possessor. Roumillot v. Gardner, 113 Ga. 60, 38 S.E. 362, 53 L.R.A. 729 (1901). Possession under order of year’s support for widow. - When a landowner’s estate was set apart as a year’s support for his widow and three children by her, without mentioning two children of the decedent by a former marriage, and the persons to whom the year’s support was so set apart took exclusive possession of the property under claim of title, this constituted a severance from the other children, and a prescriptive title began to run. Norris v. Dunn, 70 Ga. 796 (1883). Merely recording deed from one tenant in common to a third person does not constitute actual ouster of other cotenants. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982). Possession of property by party who stands in position of tenant of cotenant does not constitute actual ouster of other tenants in common. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982). Possession under conveyance from third person. - There is a material difference between the effect of a deed or transfer by a tenant or tenants in common purporting to convey the whole estate to a stranger, and a transaction in which such a deed or transfer is made by an outsider to a tenant in common. In the former case, possession by the grantee may amount to an ouster or disseizin, while in the latter case a different rule applies. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946). Requirement of ouster. - Trial court properly granted summary judgment to defendant pursuant to O.C.G.A. § 9-11-56 on plaintiff ’s claim for adverse possession of land; O.C.G.A. § 44-6-123 required an adverse-possessor cotenant to effect an actual ouster against the other cotenant, and in this case, it was undisputed that plaintiff took no action to effect an actual ouster of defendant. Vaughn v. Stoenner, 276 Ga. 660, 581 S.E.2d 543 (2003).

Evidence insufficient to support ouster. - Only evidence of an adverse holding is the bare fact that the vendors of the defendant were in the exclusive possession by their tenants or agents, and that what rents were collected from the land were paid to them, their agent testifying that he knew of no other owner or claimant of the premises. This is not sufficient to make out a case of adverse holding by one cotenant against another. Morgan v. Mitchell, 104 Ga. 596, 30 S.E. 792 (1898). When land was owned by two persons as tenants in common, and one of them took a deed from a third person purporting to convey to himself the whole of the common property, and had such deed recorded, and when the conveyance amounted to nothing more as between the cotenants than the removal of an encumbrance for which they were both liable, possession of the land by the grantee, under such deed, would not (assuming good faith) constitute such an ouster of the other cotenant as would lay a foundation for the commencement of adverse possession against him, unless it was accompanied by a hostile claim of which he had actual notice. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946).

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Possession of heir of deceased grantee in certain deeds was that of the other heirs standing in the same relationship as cotenants, and in the absence of actual ouster, exclusive possession after demand or express notice of the adverse possession, the devisee did not acquire prescriptive title as against cotenants by such possession. Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947). By affidavit, heirs showed that a cotenant did not meet the requirements of O.C.G.A. § 44-6-123 by averring that the cotenant took no action to oust the heirs from the property in question, to demand and retain exclusive possession, or to give actual notice of adverse possession; the burden shifted to the cotenant to point to a conflict on this issue, but in an affidavit, the cotenant only showed that the cotenant paid the property taxes and that the heirs did not use the property or question the cotenant’s right to be on the property, which did not establish an ouster or to satisfy an ‘‘express notice’’ or a ‘‘hostile claim’’ criterion, and summary judgment in favor of the heirs was proper. Ward v. Morgan, 280 Ga. 569, 629 S.E.2d 230 (2006).

RESEARCH REFERENCES Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 145, 212 et seq. C.J.S. - 86 C.J.S., Tenancy in Common, §§ 15, 19, 20, 30 et seq. ALR. - Right of cotenant to acquire and assert adverse title or interest as against other cotenants, 54 ALR 874; 85 ALR 1535.

Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 ALR2d 1214. Adverse possession between cotenants, 82 ALR2d 5.

Part 2 Partition Law reviews. - For article surveying Georgia cases in the area of real property

from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS When remedy at law is required for partition. - Unless, due to reasons stated in former Code 1933, § 85-1501 (see O.C.G.A. § 44-6-140) equitable jurisdiction was applied, the parties seeking a partition of lands were required to resort to the remedy at law.

Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943). Petition for partition and accounting presents case in equity. - Petition which not only embraces a statutory application for partition but also prays for an accounting

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from cotenants for rents and profits presents a case in equity. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943). Writ of mandamus cannot compel commissioner appointed by the court to partition lands to discharge duty. The duties of a commissioner appointed by the court to partition lands are purely administrative, and to issue a mandamus to require one of the commissioners to act would be the equivalent of the court ordering itself to act. Failure to act might be grounds for contempt proceedings but not mandamus. Lankford v. Kirkland, 207 Ga. 504, 62 S.E.2d 836 (1950). Attorney’s fees in partition proceeding. - When there is only a statutory proceeding for partition of lands, attorney’s fee for the moving party cannot be deducted from the

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proceeds of sale by the partitioners as a part of the expense contemplated by that statute. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943). When petition for partition constitutes election to sell interest. - When a written agreement between tenants in common provides that either party may sell that party’s interest in the property, the filing of a petition for partition by one of the tenants in common constitutes an election to sell one’s interest in the property. Bowers v. Bowers, 208 Ga. 85, 65 S.E.2d 153 (1951). Cited in McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932); Nixon v. Nixon, 197 Ga. 426, 29 S.E.2d 613 (1944); Johnson v. Flanders, 92 Ga. App. 697, 89 S.E.2d 829 (1955); Lowe v. Loftus, 314 F. Supp. 620 (S.D. Ga. 1970).

RESEARCH REFERENCES ALR. - Partition: division of building, 28 ALR 727. Right to partition as affected by severance of estate in mineral from estate in surface by one or more of cotenants, 39 ALR 741. Interference by court with decision of commissioners in partition suit, 46 ALR 348. Respective rights of owners of different parcels into which land subject to an oil and gas lease has been subdivided, 46 ALR 634; 106 ALR 906. Right of executor or administrator to bring proceedings for partition of real property, 57 ALR 573. Power to decree pecuniary sum as equality in order to equalize shares of parties in partition, 65 ALR 352. Testamentary provisions operating to prohibit or postpone partition, 85 ALR 1321. Partition as affecting pre-existing mortgage or other lien on undivided interest, 93 ALR 1267. Power of court in partition proceedings to direct sale of property without aid of or contrary to recommendation of commissioner or referee, 95 ALR 1330. Partition suit or partition deed as affecting character of estate as ancestral estate or estate of purchase for purposes of statute of descent and distribution, 103 ALR 231. Parol partition or division of real property as between undivided interests held by same person in different capacities, 116 ALR 626.

Cotenant’s right to allowance in partition in respect of amount paid to discharge mortgage or other lien upon premises as affected by statute of limitations or laches, 117 ALR 1442. Right of party to voluntary partition, or of his successor, as against other parties thereto, or their successors, where title fails as to parcel, or part of parcel, conveyed to him, 123 ALR 489. Holder of mortgage or other lien upon an undivided interest in real property as a necessary or proper party to a suit for partition, 126 ALR 414. Parol partition and the statute of frauds, 133 ALR 476. Right to, and effect of, partition of undivided interests held respectively in fee and in life estate with remainder, 134 ALR 661. Homestead right of cotenant as affecting partition, 140 ALR 1170. Right to partition in kind of mineral or oil and gas land, 143 ALR 1092. Dower and homestead rights as affecting partition proceedings, 159 ALR 1129. Partition: construction and application of provision for assignment, to one of co-owners, of real estate not readily divisible, 169 ALR 862. Partition of undivided interests in minerals in place, 173 ALR 854. Burden of proof in partition suit as regards alleged prior voluntary partition of property, 1 ALR2d 473.

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Timber rights as subject to partition, 21 ALR2d 618. Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions, 54 ALR2d 643. Maintainability of partition action where United States or state owns an undivided interest in property, 59 ALR2d 937. Contractual provisions as affecting right to judicial partition, 37 ALR3d 962.

Right to partition of overriding royalty interest in oil and gas leasehold, 58 ALR3d 1052. Lack of final settlement of intestate’s estate as affecting heir’s right to partition of realty, 92 ALR3d 473. What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 ALR3d 502.

Subpart 1 Equitable Partition