The substance of the petition is set out in the foregoing statement of facts. The defendant demurred to the petition, on the grounds that the plaintiffs were not entitled to the relief sought; that the claim is out of date; that the plaintiffs are seeking indirectly to do what they can not do directly; that if they have a claim it is for specific performance, and the facts alleged are stale, and the law will not maintain their claim in an *417action of specific performance, for the reason that something like forty years has elapsed; and an attempt to recover by way of ejectment and accounting can not be maintained when they have no title to the lands, and the law will not decree them a title.
1. We are of the opinion that the facts set out in the petition are sufficient to withstand the demurrer which was overruled by the court. Permissive possession of land can never ripen into a prescriptive title until an adverse claim and actual notice is given to the other party. Civil Code (1910), § 4164. No such notice appears from the petition in this case. It appears from the petition that after Mrs. Ryals, the mother of some and grandmother of the others of the plaintiffs, paid to the defendant, Henry Ryals, the full purchase-price of the land, he continued to hold possession thereof for the wife without making her a deed to the land, which he had agreed to do. In these circumstances it will be held that the wife held the land under a perfect equitable title.
2. Ground 6 of the motion for new trial complains that in the trial of the case there was “no contention or evidence that this said sale and purchase of the said $1200 for the said real estate was allowed by any order of any superior court of said State, but on the contrary the evidence shows no such order was obtained. Therefore the said sale was invalid, and the wife’s remedy was to recover back her money if she wanted to. Movant further contends from plaintiffs’ contentions it conclusively is presumed that his said wife made him a gift of the said $1200, which he knows he never did receive under any condition,” etc. This contention is without merit. “Even if a deed from a husband to a wife, conveying land for a money consideration, is invalid because evidencing a sale of the separate estate of the wife, for which no order has been obtained in accordance with the provisions of the Civil Code, § 2490, the right to assail its validity on this ground is personal to the wife and her privies in blood or estate, and can not be asserted by a stranger to her title.” Scaife v. Scaife, 134 Ga. 1 (67 S. E. 408). In Williams v. Rhodes, 149 Ga. 170 (99 S. E. 531), it was held: “Even if a deed from a husband to his wife, conveying land for a money consideration, falls within the provisions of the Civil Code, § 3009, which declares that ‘no contract of sale of a wife as to her separate estate with her husband or her *418trustee shall be valid, unless the' same is allowed by order of the superior court of the county of her domicile/ so that such a deed without an order of court is invalid, the right to assail its validity on this ground is personal to her and her privies in blood or estate. Munroa v. Baldwin, 145 Ga. 215 (88 S. E. 947). It can not be asserted by a creditor of the husband who has reduced his debt to judgment against the husband after the deed by the husband to the wife, and caused the land to be levied upon as the property of the husband under an execution based on such judgment.”
It will be observed that the plaintiff in error is not claiming title under his wife, but is claiming adversely to her, “and that he has never offered to sell it to his deceased wife, that he has held it for the past forty years as his own property.” So it can not be said that he is either the privy in blood or estate of his wife. It is true the jury found in his favor a one-fifth interest in the land in question as an heir at law of his wife; but his pleadings and evidence are to the effect that he did not claim under his wife, but that he held a separate and distinct title. ' .
3. Ground 10 of the motion for new trial complains that the court erred in charging the jury in violation of the Civil Code (1910), § 4863, prohibiting the judge from either expressing or intimating an opinion as to what has or has not been proved, to wit: “This is a suit brought by M. M. Ryals and others against Henry Ryals. It is an equitable suit, not exactly in the way of the recovery of lands but to decree the title in them, claiming the right and equitable title in certain described tract of land along with Henry Ryals; and they have brought this suit to declare their title and interest in it, and ask for a partition; and they further ask that Mr. Ryals, who has been for a long time in the peaceable possession of it, I mean in the permissive possession of it, using it with their consent, that he be required to account for the rents, issues, and profits that came into his hands by reason of his occupancy thereof.” It is insisted that the court expressed his opinion to the jury of the character of the possession of movant, and that he held the premises “as being permissive.” "We are of the opinion that the charge complained of in this ground of the motion was not an expression on the part of the court as to what the evidence was in the case, but was merely a statement of what the *419court understood to be the contentions of the plaintiffs. The court, almost immediately following the excerpt from the charge of the court complained of, instructed the jury as follows: “Now those are generally the principal contentions of the plaintiffs.”
The petition in this case alleged that the defendants, Henry Ryals and Mrs. McArthur, were heirs at law of Mrs. Annie Ryals, and the prayer was “that in said decree it be provided that said land be partitioned and each of the heirs of said estate receive his or her proportionate part of said land,” etc. The verdict was, “We, the jury, find in favor of the plaintiffs,, and each shall share one fifth part of the Dick Strickland place,” etc. The decree provided, among other things, that “the absolute right, title, and interest, in fee simple, to one fifth undivided interest be and is hereby vested in each of the heirs at law of Annie Ryals, deceased, to wit, Henry Ryals, M. M. Ryals, Mrs. Annie Thompson, Mrs. Susanna McArthur; and one fifth interest jointly in Mike Copps, Mrs. Nellie K. Still, Henry Lee Copps, and Jesse Copps, the husband and children of Mrs. Frances Copps, who was a child of said Annie Ryals, deceased, in and to that certain tract or body of land known as the Dick Strickland place,” etc. Under the pleadings and evidence the verdict, properly construed, gave each of the heirs at law of Annie Ryals one fifth interest in her estate, including Henry Ryals, who was given, in addition, possession of all the property during his lifetime. The decree, construed in the light of the pleadings and evidence, properly gave to each of the heirs at law of Annie Ryals one fifth interest in her estate, and did not exclude any of them. In view of the entire record it can not be held that either the verdict or decree, or both, are void. 'None of the heirs are excluded.
Other headnotes require no elaboration. The evidence authorized the verdict, and the judge did not err in overruling the motion for new trial. Judgment affirmed.
All the Justices concur, except