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NAME OF CASE.

PAGE WHERE (ITED.

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WHERE REPORTED.

Vol. Page. Vanzant vs. Bigham .....

76 Ga. 759....

362 Varner vs. Gunn...

61 54... (distinguished) .. 363 Venable 18. Cody

68 171... (distinguished) 236 Ventress rs. Rosser...

73 535...

475, 671 Vickers 18. Atlanta & W. P. R. Co.. 64 306... (distinguished) .. 417 Virgin us. Wingfield...

451....

6
Wachtel rs. Wilde & Co...... 58 50.
Wade 78. Weslow & Company ...... 62 " 562 ... (distinguished) .. 775
Walker us. Walker...........

14
242

643 Wallace vs. Atlanta Med. College... 52 164.

42 Wallace is. Holly ......

13 394.

718 Water Lot Co. vs. Bank......

53 30..

22 Welch 18. Butler.....

24 415

163 Westbrook 18. Davis .......

48 473.. (distinguished) .. 236 West End & A. St. R. (0.rs. Mozely 79 463.........

275 Western & Atlantic Railroad Co. r's. McCauley..

08 818... (distinguished) .. 414 Western & Atlantic Railroad Co. 18. Meigs.........

74 857

417 West vs. Bennett.........

59 507 ... (distinguished).. 18 Wetter rs. United Hydraulic Co... 75

126 White vs. Clements...

39 232.

93 White 18. State ......

51
252 ......

284 Wiley vs. Kelsey......

3 274,

21 Williams 18. Goodall...

60 182.

393 Willis vs. Henderson)...

43 325... (distinguished) 494 Windsor 18. Cruise.....

79 635,

339 Wingard vs. Tift.......

24 179... Wingfield vs. Virgin.......

51 139,

6

(distinguished)... 362 Woodruff vs. McGehee ........ 30 158..

606 Woods vs. McCall......

506....

81 Woolbright vs. Cureton...

76
107.

751 Worthy vs. Lowry

19 517

21 Wright vs. Smith ........

13

291. Yahoola River Co. vs. Irby. 40 179.

392

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164

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RULES.

The following rules have been adopted since those published in 78 Ga.

Rule 43. The time and labor of the court being taxed to the utmost in the transaction of the public business, any attorney who shall by gross negligence, or of wilful purpose, impose upon the court any needless or unnecessary labor or consumption of time, will be deemed in contempt and punished accordingly. This rule will apply to no doubtful matter, but only to such surplusage in bills of exceptions, briefs, briefs of evidence, arguments, etc., às come clearly within it. IIereafter there is to be no waste of work or time in transacting the public business appertaining to this court.

Adopted April 10, 1889.

RULE 44. No cause shall be heard where cost is due, until the cost is paid, and if not paid when the case is called, the same will be dismissed. The clerk shall see that this rule is observed. He will issue execution against the plaintiff in error and his counsel for any costs due and unpaid as soon as the case is disposed of.

Adopted September 24, 1889,

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1. The declaration in the code that possession, to be the foundation of

prescription, must not originate in fraud, means such fraud as is actual, moral fraud, as distinguished from legal fraud. Hunt et al.

vs. Dunn et al., 74 Ga. 120, doubted and distinguished. (a) Where the evidence shows that defendant purchased the land in

question from the agent of two executors; that the power of attorney, under which the agent sold, recited that they were the executors of a testator, some of whose heirs at law are the plaintiffs, and further recited that such executors, under his will, had the right to sell this land, and contained no intimation that there was another executor, or that the property in question was not mentioned in the will; and the evidence further shows that defendant paid a large sum of money for the land, went into immediate possession of it and held it from that time up to the commencement of this litigation, claiming it in good faith; if the title he thus acquired was not a good legal title, it was a mistake of law on his part and on the part of the parties from whom he purchased, no actual fraud being

shown on the part of either. (6) Even if defendant had looked at the will and found that three ex

ecutors were appointed in it, and that this land was not mentioned in it, it could hardly be held that he was guilty of a fraud if he had

Ware et al. vs. Barlow.

concluded that two of the executors had the right to carry out the

provisions of the will and to sell this land. 2. The record further shows that the land was sold to defendant in

June, 1866; that most of the parties plaintiff had notice of the sale at that time, and some of the heirs shared in its proceeds; and that the action was not begun until seventeen years after the purchase was made and fifteen years after all had notice. It seems that it

would be a fraud, under the facts, to deprive defendant of the land. (a) While the court below might have left the matter of good faith to

the jury, yet as they would have been obliged to find in favor of defendant, the case will not be sent back for another trial. May 9, 1888.

Title. Prescription. Fraud. Notice. Laches. Wills. Executions. Before Judge WELLBORN. Lumpkin superior court. October term, 1887.

The plaintiffs in error brought their action of ejectment, on March 18, 1887, against certain tenants of the defendant in error, who, on December 1, 1887, was made a party to the cause, for five-sevenths undivided interest in lot of land number 727 in the 12th district and 1st section of Lumpkin county, known as the Pigeon Roost gold-mine, and for mesne profits. The defendant pleaded not guilty, the statute of limitations of four years and a prescription under color of title.

On the trial, it was admitted that four of the plaintiffs were children of Edward Ware, who died November 20, 1861. The other four are the heirs of a deceased son of Edward Ware. Edward Ware, at the time of his death, left nine children, and they were his sole heirs at law. Two of them died before the bringing of this suit, leaving no wife, husband or lineal descendant.

Among other things the plaintiff's put in evidence an act of the legislature of Georgia, passed October 12, 1866, (acts 1866, p. 103,) incorporating the Georgia Company, for mining and other purposes, in which George G. Pride, S. L. M. Barlow, and such other persons as were then or might thereafter become associated

Ware et al. vs. Barlow.

sum.

with them, were constituted a body corporate, etc. Also a certified copy from the records of the court of ordinary of Floyd county, dated January 13, 1862, granting letters testamentary to A. A. Terhune, as one of the executors of Edward Ware.

R. H. Moore testified that he made the deed, hereafter referred to, in which he appears to be grantor. He put Pride in possession of the lot, and did not know with whom Pride was associated at the time, but thinks he occupied for himself, Barlow and one Grant. When Edward Ware claimed the lot, no one was in actual occupation of it. Ware employed witness to sell the lot for $5,000, and witness was to have all he got over that

He sold the land to Pride, who paid him in full and was put in possession in 1866. "The sheriff sold the land in 1870 or 1871, and Barlow has been in continuous, public and notorious possession since then. At the time of the sale to Pride, there was a man named Smith in possession, claiming the land as his own, and said he had been in possession sixteen years. The witness made a bargain for it with Smith, and took possession, acting for James W. and B. F. Ware, or for the Ware estate. He paid Smith $500, borrowed from Pride. After the sheriff's sale, Rice was put in possession for Barlow and controlled the land for him.

A. A. Terhune swore that he was managing executor of the estate of Edward Ware; that he was present when Ware's will was written, and as this was being done Ware described the property ; that he had heard Ware speak of the land in dispute; that Ware knew of the lot at the time he was making his will, but said he had mislaid the title; that witness had no knowledge of the power of attorney (hereafter referred to) for the sale of this land, and first heard of it about the time of the trial; that he was not consulted about the making of the deed, and in 1882 first heard that the land had been

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