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Ware et al. vs. Barlow.

conveyed by the other executors; that before 1870 he heard that they had sold their interest in the lot, not the whole title; that his wife is Edward Ware's daughter, and has never got any money from the lot; that he could not say he had ever resigned his administratorship; that James P. Ware, one of the executors, died in 1870, and B. F. Ware, the other executor, is still living, and consented to the bringing of this suit; and that Edward Ware had no other real estate not included in his will, except this lot, that witness had heard of, etc.

It was admitted that if Edward Ware ever owned the lot in controversy, he owned it prior to and at the time of the execution of his will. This will disposed of a large amount of property, real estate, negroes, etc., but did not mention the land in dispute; appointed his sons, J.P. and B. F. Ware, and his son-in-law, A. A. Terhune, executors; and, by the 8th item thereof, provided that all of his land, except a certain tract specifically bequeathed, should be sold by his executors at either public or private sale as they might think best.

Among other things, the defendant put in evidence a quit-claim deed to the land in dispute from Green B. Smith to J. P. and B. F. Ware, executors of Edward Ware, dated March 17, 1866, consideration, $500; also a power of attorney from the said two executors to R. H. Moore, authorizing him to sell the lot in dispute, reciting that, by the 8th item of the will of Edward Ware, said executors were authorized to sell the land at public or private sale, and stating that the title of Edward Ware was inherited from his brother, Alexander Ware; that Edward and Thomas Ware were the only heirs of Alexander; that Edward, by division, acquired his brother's interest; and empowering either public or private sale. It was dated July 25, 1865. Also a deed from Moore, as attorney in fact, to George G. Pride, S. L. M. Barlow and William L. Grant, to the land in dis

Ware et al. vs. Barlow.

pute; consideration, $15,000; date, June 15, 1866. Also a number of executions against the Georgia Company, transferred to Barlow and levied on much property, including the lot in dispute, with entry of sale to Barlow; also sheriff's deed under these executions, dated February 8, 1871, conveying the real estate levied on. Also letters testamentary to J. P. and B. F. Ware on the the estate of Edward Ware, dated November 23, 1861.

All other material facts are stated in the opinion.

WRIGHT, MEYERHARDT & WRIGHT, HALL & HAMMOND and R. H. BAKER, for plaintiffs.

PRICE & CHARTERS and H. H. PERRY, for defendant.

SIMMONS, Justice.

Counsel for the plaintiffs in error insisted on four propositions for reversal of the judgment of the court below in this case: (1) that the court erred in ruling that Barlow did not derive his title from Edward Ware; (2) that the court erred in holding that the executors of Edward Ware had power to sell the land in question, under the 8th item of the will, it not being in the lands enumerated therein; (3) that the court erred in holding that the deed made by the two executors, without the knowledge or concurrence of Terhune, the other executor, was good; and (4) that the court erred in holding that the defendant, Barlow, had a good title by prescription. The view we take of this case renders it unnecessary to discuss any of these propositions, except the last.

Under the facts as disclosed by the record, did Barlow, the defendant in error, have a title by prescription to this lot of land ? Counsel for the plaintiffs in error insist that he did not. They contend that the power of attorney which the executors gave to Moore recited the provisions of Edward Ware's will; that it was the duty

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Ware et al. vs. Barlow.

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of Barlow to have looked to that will, and that if he had done so he would have discovered that there were three executors appointed under the will, and that they had the power only to sell certain lands therein described ; that whether they looked at the will or not, the recital in the power of attorney to Moore was sufficient to put them on inquiry; and that they were, therefore, chargeable with notice that the two executors had no authority to sell, or that if they had power to sell anything, they were not authorized to sell this particular lot of land, because it was not mentioned in the will. They insist, therefore, that having this notice of the want of authority of the executors to sell this land, his action amounted in law to a fraud, and no prescription would arise in his favor. They contend that a legal, as well as a moral fraud, would prevent prescription from commencing to

We do not agree with them in this contention. 1. When the code declares that possession, to be the foundation of prescription, must not originate in fraud, we think the fraud meant is an actual fraud, a moral fraud, a wrongful act, and not a legal fraud, which the law denominates a fraud regardless of the bona fides of the parties. In the case of Virgin vs. Wingfield, 54 Ga. 451, this court, in discussing this identical question, uses the following language : “ We have held in several cases that constructive notice does not make a title fraudulent; that the law will not infer fraud in such cases from negligence; that the fraud contemplated must be some conscious, actual wrong, something which shows that the party charged with acting in bad faith, was doing what he must have known was wrong and unfair.” In a case between the same parties, in 51 Ga. 139, this court held, WARNER, C. J., delivering the opinion, that the fraud must be actual. In these cases, the facts showed that Wingfield was the trustee and had the legal title, and that Weems sold the land to Wylie,

Ware et al. vs. Barlow.

and the bill alleged that Wylie knew that Weems had no power or authority to sell; and the court said that in a case of that kind the fraud must be actual.

In the case of Wright vs. Smith, 43 Ga. 291, McCay, J., in treating of this question, says: “ The question of adverse possession is one of intention, and turns upon the bona files of the tenant. To charge him with fraud, so as to vitiate his possession, the facts must be such as to affect his conscience. They must be brought home to him. It is true that one who buys property with constructive notice of an outstanding claim is in some sense charged with fraud—implied fraud. He is bound to look to the record; he is bound to follow up any fact which should put a prudent man on the watch; and if he fail to do this, he is looked upon as guilty of neglect. But if we take this view of the notice referred to in the section of code under consideration, we should destroy the whole doctrine of prescription. If one who buys property looks to the record--follows up every fact which ought to put a prudent man on the watch—and only buys when he finds nothing wrong, then he gets a good title, and the statute of prescriptions is wholly useless. According to the argument, one can only set up a prescriptive title when he has had seven years' possession under a legal title. The very object of the statute is to protect persons in possession under defective titles, and if it can only be used to protect one who has bought without notice, either actual or constructive, of the outstanding rights of third persons, then the statute is wholly worthless, since such a purchaser would be protected without it. To charge the person

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possession with notice, even of a fraud in his deed, the facts must be such as to charge his conscience. He must be cognizant of the fraud, not by construction but by actual notice.

No man can be fairly said to hold land adversely to another who, at the time he

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goes into

Ware et al. vs. Barlow.

possession, has notice that he is committing a fraud, that the title under which he enters is forged or fraudulent. His entry is not bona fide ; his claim of right is only pretended. But if he have no actual notice, if he honestly thinks his claim good, if he does not have noticeactual notice, he may be very well said to hold adversely. He is in earnest. IIe does not merely pretend to a right, but really claims it." In the case of Salter vs. Salter, decided at the last term of this court, (80 Ga. 178, BLANDFORD, J., delivering the opinion, said: “ We think that the fraud mentioned there (in the code) means positive fraud—actual fraud, not constructive or legal fraud. It must be such a fraud as affects the conscience. If they had reason to believe, and did believe, that the property was subject to the execution, although they might have known of the claim set up by the complainants in this bill, then that, in our opinion, would not amount to positive fraud.”

Applying these rules to the facts in this case, we find that Barlow purchased this land from the agent of the two executors; that the power of attorney recited that they were the executors of Edward Ware; that they had a right, under this will, to sell this land; that there was no intimation therein that there was another executor; that he paid $15,000 for forty acres of land; that he went immediately into 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. The evidence does not disclose a single fact to show that this purchase was made in bad faith, or that any act that Barlow did was wrongful or unfair. If he had looked at the will and had seen that three executors had been appointed, would any court hold that it would have been a fraud on his part if he had

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