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entry might not have been in his own right, after he made it appear that he did so claim possession of the land the possession thus claimed would ripen into title. However this may be, there is a reason why the jury before whom the case was tried might legally find that the possession so claimed did not result in a prescriptive title to the father. The witness who testified that he saw the deed from Jonathan Bailey to his granddaughter in the possession of the testator also testified that the testator knew its contents and knew who was the grantee therein; that he attempted to conceal knowledge of the existence of such deed. and told the witness to say nothing about it; and it having been shown that at the time of the execution of the deeds in 1845, which made disposition of the Swilling tract, the grantor, Jonathan Bailey, had prepared a plat of that tract and each subdivision, covered by the respective deeds, which plat went into the possession of James Reed, presumably about the time of the execution of the deeds, and was found among his papers after his death, these facts would support a finding that the claim of possession in his own right by James Reed originated in fraud, which would prevent such claim from ripening into a title: Civ. Code, sec. 3581. If a person takes possession of land which he knows does not belong to him, no prescription will run in his favor, however long he may hold possession of the same. His possession under such circumstances originates in fraud, and time will not cure or sanctify the fraud: Cowart v. Young, 74 Ga. 694. The testimony of some of the witnesses shows that after the grantee had arrived at age and had married, the father rented to her a particular portion of this tract of land, she testifying that, at the time, she had no knowledge of her title. This is one of the strongest grounds that the plaintiff in error makes for basing a claim of adverse possession by the testator. At the time, however, of these acts which tend to manifest adverse holding, the evidence shows that the tes tator knew that the paper title to the land was not in him, but in the daughter to whom he rented. This knowledge was fatal to his claim of title. He could take nothing by his own 165 wrong: Lane v. Lane, 87 Ga. 271. When the doctrine of prescription is involved in a suit in ejectment, good faith is one of the main elements in the cause. If one purchases land in bad faith, knowing that the title he purchases is fraudulent, it can never ripen into a good title. The law will not permit the true owner to be defrauded of his land in that way: Brown v. Wells, 44 Ga. 573; Hunt v. Dunn, 74 Ga. 120. If it was a fact that

the testator entered into possession of this land under a deed to his daughter, he was in law a trustee for her, and it was his legal and moral duty, when she reached her majority, to transfer to her possession of the land, with the muniments of title: Thornton on Gifts, 159, et seq. If it be true that, instead of doing so, he concealed from her all knowledge of her title, claimed the title and right of possession in himself, and rented to her a part of the particular land which she owned, it was a moral wrong on his part, and the true owner of the land could not be ousted by an adverse claim made under these circumstances. This court has held in a number of cases that the fraud necessary to vitiate possession is more than a mere legal fraud. Adverse possession is one of intention, and it turns upon the good faith of the person setting it up. The facts must be such as to affect his conscience, and they must be brought home to him: Wright v. Smith, 43 Ga. 291. He must be cognizant of the fraud, not by construction, but by actual notice, and no man can be fairly said to hold land adversely to another who at the time he goes into possession has notice that he is perpetrating a fraud. His claim of right must have simply been pretended: Ware v. Barlow, 81 Ga. 1. In a case where an administrator had gotten into his hands assets, bonds, et cetera, belonging to the intestate in England, which were unknown to the heirs to have belonged to him and the heirs had only lately discovered the fact, the administrator having made no return of said assets, bonds, et cetera, but on the contrary, having not only concealed the fact that he had them, but that they in fact existed, Judge Story said that the guilty party shall not be allowed to say that his own concealment of the plaintiff's right shall work in his favor: Pratt v. Northam, 5 Mason, 110.

166 It is true that in many of these matters the evidence was conflicting. The jury settled the question, however, as to the facts of the case. With that settlement this court is satisfied, and cannot say that the verdict which they rendered is contrary to the evidence and the principles of justice.

3. The plaintiff in error further contends that the court erred in admitting in evidence the deed from Jonathan Bailey to Sarah Reed, over the objection of plaintiff, the ground of such objection being that the instrument was not in law a valid deed. This assignment of error upon the validity of the deed is very general in its nature, and does not point out any particular invalidity which may exist. An inspection of the instrument, however, shows that it did not purport on its face to have been delivered.

It was signed in the presence of two witnesses, neither of whom was an officer, and their signatures as witnesses were made under the word "test." It is not essential, in our opinion, that the deed should have borne on its face any purport that it was delivered. Subsequently to its execution, the deed was, as before stated, probated in the usual form by one of the witnesses before a magistrate. The usual form is an affidavit that he saw the grantor sign, seal, and deliver it, for the purpose for which it was intended, in the presence of the two witnesses named. If there were any defects in the want of proper attestation of the deed as executed, this probate certainly makes it whole. The deed was recorded on the day this probate was made, and, at the time of this trial, had appeared on the records in Franklin county for nearly fifty years. The question of delivery was a proper question for the jury. The deed being recorded, it was admissible in evidence without further proof, not only to show that it was signed, but that it was also delivered: Rushin v. Shields, 11 Ga. 640; 56 Am. Dec. 436. The record of a deed is of itself presumptive proof of its delivery: Wellborn v. Weaver, 17 Ga. 275; 63 Am. Dec. 235; Harvill v. Lowe, 47 Ga. 217. In Younger v. Guilbeau, 3 Wall. 641, Field, J., says: "The registry of a deed by the grantor is entitled to great consideration upon this point, and might, perhaps, justify, in the absence of opposing evidence, a presumption of delivery": See, also, Tiedeman on Real Property, sec. 812; Highfield 167 v. Phelps, 53 Ga. 59. Delivery of a deed executed in behalf of an infant for the consideration of love and affection, to a witness of the deed for the benefit of the infant, is delivery to the infant: Watson v. Myers, 73 Ga. 138. Under the circumstances which appear in the evidence as to the record and possession of the original deed, we deem the delivery to have been sufficient in law.

4. The instrument is inartistically drawn. The description of the land is shown in some details to be inaccurate. The deed does, however, by its terms convey the "balance" of the Robert Swilling tract of land; it does say that it contains sixtysix acres; it does place it as lying in a given direction from another known tract. In connection with the other deeds conveying the other parcels of the named tract, which were in evidence, we cannot say, as a matter of law, that the instrument is so wanting, vague, and uncertain in description as to be void and inadmissible as evidence of title; but that, when aided by other competent extrinsic evidence which we find in the record, the

property intended to be conveyed can be sufficiently identified, and such was the conclusion of the jury.

5. There was no error in admitting the testimony of Sarah Salmons, one of the defendants, on the ground that James Reed, the plaintiff's testator, was dead. The judgment of the court below is affirmed.

All the justices concurring.

ADVERSE POSSESSION-BETWEEN PARENT AND CHILD. In Scarboro v. Scarboro, 122 N. C. 234, land was conveyed by deed from parents to children in 1868. The father continued in possession of the land, which the deed purported to convey, until his death in 1878, and was succeeded by his wife, who remained in possession until 1896 continuing to exercise acts of ownership over it as her husband had done. It was held, upon the question being raised, that the continued possession by the grantors in the deed was adverse to the grantees, and had the effect of revesting title in the grantors if the deed had effected any divestiture of title. A son may hold adversely to his parent, but the character of the possession is a question for the jury: Roberts v. Roberts, 2 McCord, 268; 13 Am. Dec. 721. And where a father became insane and one of his sons took the management of his farm, holding it for more than the prescriptive period, he was held not to take title as against the heirs of his father: Hunt v. Hunt, 3 Met. 175; 37 Am. Dec. 130. Upon the general subject of adverse possession see monographic note to De Frieze v. Quint, 28 Am. St. Rep. 158-162.

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DEEDS DELIVERY-WHAT CONSTITUTES-EFFECT RECORDING.-A physical transfer of a deed from the grantor to the grantee is not absolutely essential to its delivery: Rodemeier v. Brown, 169 Ill. 347; 61 Am. St. Rep. 176. The question of delivery is one of intention, and delivery may be effected where a deed is given into a third person's hands for the benefit of the grantee, as where a deed to a minor was placed in her father's hands to be retained by him until she should attain years of discretion: See monographic note to Brown v. Westerfield, 53 Am. St. Rep. 539, 542. In some jurisdictions the recording of a deed is regarded as sufficient, if not conclusive, evidence of delivery: See monographic note to Brown v. Westerfield, 53 Am. St. Rep. 549, as to what is delivery of a deed.

DEEDS SUFFICIENCY OF DESCRIPTION.-Courts should uphold rather than destroy deeds; and in the discharge of their duty in this respect, errors in description are frequently declared to be of no effect: Sherwood v. Whiting, 54 Conn. 330; 1 Am. St. Rep. 116. It is sufficient if a description enables one to identify the premises conveyed: Nelson v. Brodhack, 44 Mo. 596; 100 Am. Dec. 328; Choteau v. Jones, 11 Ill. 300; 50 Am. Dec. 460, and note; Simpson v. Blaisdell, 85 Me. 199; 35 Am. St. Rep. 348, and note.

PRITCHETT V. Davis.

[101 GEORGIA, 236.]

HOMESTEADS-LEASE OF BY HEAD OF FAMILY, WHEN VOID.-After a homestead has been set apart out of the lands of a husband for the benefit of his wife and minor children, a lease executed by him alone, during the continuance of the homestead, purporting to convey to third parties all rights to the timber on such land for turpentine and other purposes, and also all his right, title and interest in the sawmill timber thereon, to be cut by the lessees or their assigns, within a certain period, is void.

HOMESTEADS - INJUNCTION. BENEFICIARIES in a homestead have such an interest in the use and enjoyment of the property as enables them directly to maintain a suit for an injunction to protect it against an illegal invasion.

HOMESTEADS-EVIDENCE.-The original homestead papers are primary evidence of the setting apart and valuation of the homestead. The record of such papers is only secondary evidence.

Petition for an injunction by Mrs. Davis, for herself and as next friend of her two minor children, against W. and T. J. Pritchett, alleging that plaintiffs held the paramount right to the exclusive possession, use, and control of a tract of land described, and which had been set apart for their use and benefit as a homestead out of the property of Arthur Davis, the husband and father of the plaintiffs; that defendants had entered on the land, and without lawful right were proceeding to box and cut for turpentine the pine timber thereon, under an alleged lease from said Arthur Davis alone, to the great damage of plaintiffs. Judgment for the plaintiffs, and the defendants prosecuted a writ of error.

J. M. Stubbs and Harrison & Peeples, for the plaintiffs in

error.

I. Beasley and J. K. Hines, for the defendants in error.

240 LITTLE, J. 1. It will be seen from the foregoing statement of facts that the homestead estate upon which petitioners based their claim to the premises in dispute and prayer for injunction was allowed and approved on December 1, 1884, and recorded 241 December 9, 1884; while the contracts of lease and sale from the husband and father of the petitioners, and upon which the defendants relied, were executed, respectively, March 9, 1891, and December 21, 1894.

By article 9, section 2, paragraph 1, of the constitution (Civ. Code, sec. 5913) it is provided, with reference to property set apart for a homestead, that no court or ministerial officer in

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