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Cancellation, etc. Before Judge Edmondson. Lumpkin Superior Court. August 22, 1953.
HEAD, Justice.
The trial judge properly denied a verdict for the defendant.
W. W. Poore filed a petition against his brother, Hugh M. Poore, Sr., for a partition by sale of a small tract of land, and for an accounting of certain rents. The lands sought to be partitioned were conveyed by the father or the parties, John L. Poore, for schoolhouse purposes, with a proviso that, if the property should not be used for school purposes for a period of five years, the lands would revert to the grantor, his heirs or assigns. By amendment the plaintiff alleged that a deed made by his father in 1902, conveying a larger tract of land, in which the smaller tract was located, was in fact a deed to secure debt, and that the defendant had procured the money to redeem the land from the heirs of his father. It was alleged that a described deed to Hugh M. Poore was a cloud on the title of the plaintiff, and the plaintiff prayed for cancellation of this deed, and other relief.
The defendant filed an answer, in which he alleged that the title to the lands was in his wife, and that she and her predecessors in title, had been in possession of the lands for more than sixty years. He alleged that in 1935 an action as brought in the Superior Court of Lumpkin County, and that the verdict and decree rendered therein was a full and final adjudication of the action now sought to be enforced. The defendant further alleged that if the plaintiff ever had any cause of action it accrued more than twenty years prior to the filing of his suit, and that the plaintiff is now barred by gross laches.
At the conclusion of the evidence the trial judge directed a verdict for the defendant. The plaintiff's motion for new trial was denied, and the exception is to that judgment.
The undisputed evidence in this case shows that the deed from John L. Poore to Felix W. House was a warranty deed, dated January 6, 1902, and duly recorded. The deed from House to H. H. Dean was a warranty deed, dated January 5, 1905, and duly recorded. The deed from Dean to Hugh M. Poore, Sr., was dated March 10, 1908, and duly recorded. The evidence was without conflict that Hugh M. Poore, Sr. (or his wife) had been in possession of the property continuously, at least since the date of the death of his father in 1909. The defendant's possession of the land under a duly recorded warranty deed was notice to the plaintiff and to the world of the defendant's claim of title. See Williams v. Smith, 128 Ga. 306, 313 (57 S. E. 801); McElwaney v. MacDiarmid, 131 Ga. 97, 98 (3) (62 S. E. 20).
The plaintiff's petition does not allege that the defendant was guilty of any fraud, and it is not alleged that the plaintiff was prevented by the defendant in any way from knowing of the defendant's title. In McWhorter v. Cheney, 121 Ga. 541, 547 (49 S. E. 603), this court held: "Eighteen years have elapsed since the alleged fraud was committed; the husband is dead, and the ascertainment of the truth made more difficult. Equity follows the analogy of the law; and even in suits to recover land, when fraud is charged, it has been held that 'the period of limitations applicable to an action . . . for the fraud is the same as that which would apply to an action for the land, to wit; seven years from the discovery of the fraud.' Cade v. Burton, 35 Ga. 280. 'If the defendant has been guilty of a fraud by which the plaintiff has been debarred or deterred from his action, the period of limitations shall run only from the time of the discovery of the fraud.' Civil Code, 3785. The statute of limitations is a statute of repose. When a person is defrauded and has knowledge of the fraud, the law expects him to ask redress, if at all, within the period of limitation. If he waits for a longer period, he is bound by his laches." See also Citizens & Southern Nat. Bank v. Ellis, 171 Ga. 717, 719 (156 S. E. 603), Stephens v. Walker, 193 Ga. 330 331 (18 S. E. 2d 537) Bryan v. Willingham-Little Stone Co., 194 Ga. 563 (22 S. E. 2d 40), Slade v. Barber, 200 Ga. 405 (37 S. E. 2d 143); Hadden v. Thompson, 202 Ga. 74 (42 S. E. 2d 125); Whitfield v. Whitfield, 204 Ga. 64 (48 S. E. 2d 852).
Under the above decisions of this court, if the plaintiff was entitled to any relief, his rights accrued more than 35 years prior to the filing of his suit. He is now barred from asserting claim that could have been asserted (under the allegations of his petition) more than 35 years ago.
The tract of 300 acres conveyed by John L. Poore to Felix W. Rouse included within its boundaries the schoolhouse tract. John L. Poore having parted with any claim of title to the schoolhouse tract, it could not have descended to his heirs under the reversionary clause in his deed to the school trustees.
Whether or not the trial judge may have been in error as to any reason stated by him in directing a verdict for the defendant requires no ruling by this court. Under the pleadings and evidence the plaintiff could not recover, as hereinbefore set forth. A correct judgment by the trial judge will not be reversed by this court, even though he may give a wrong reason for his judgment. Thomas v. Mayor &c. of Savannah, 209 Ga. 866 (76 S. E. 2d 796), and cases cited.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., not participating.
Weir S. Gaillard, contra.
Wheeler, Robinson & Thurmond, for plaintiff in error.
Saturday May 23 03:47 EDT

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