dissenting. Hightower instituted an action against Blakely Hardwood Lumber Company, to enjoin the cutting of timber on that part of lot 143, in the sixth district of Early County, which lies west of Spring Creek. The defendant named in that suit was the lessee of Keaton. Hightower v. Blakely Hardwood Lumber Co., 163 Ga. 776 (137 S. E. 22). The present action is complaint for land, instituted by Hightower against Keaton directly, to recover the same tract of land on which the timber was located that was involved in the suit above referred to.
1. If at the time of his entry under color of title a possessor’s mind is free from fraud and he honestly believes that he has the right to the land, prescription begins to run in his favor, and is not suspended by any subsequent discovery on his part that his title is defective. Bower v. Cohen, 126 Ga. 35 (54 S. E. 918); Powell on Actions for Land, § 328. When a possessor of land enters openly and holds his possession publicly under color of title, and there is nothing in the transaction to warrant an inference to the contrary, the law presumes good faith. Hall v. Gay, 68 Ga. 442. The evidence for the plaintiff in this case showed that A. M. Hightower had been in possession of the land in dispute, under an unrecorded deed as color of title, from 1861 to 1900, when he conveyed the same to the plaintiff, J. A. Hightower, and his sister, Mrs. Sirmons; that plaintiff and his sister remained in possession until 1918, when he acquired her interest; and that plaintiff has been in possession ever since. This evidence was sufficient, prima facie, to show prescriptive title to the land in A. M. Hightower, based on seven years adverse possession under color of title. A. M. Hightower conveyed this title to the plaintiff and his sister in 1900; and the sister conveyed her interest in the premises in dispute to the plaintiff, J. A. Hightower, in 1918. This being so, the plaintiff, prima facie, made a case entitling him to recover the land in dispute. Hightower v. Blakely Hardwood Lumber Co., supra.
2. The circumstances to the effect that the deed under which *98A. M. Hightower held this laud was an unrecorded deed, that A. M. Hightower had not paid the taxes on the premises in dispute for the period from 1885 to 1900, inclusive, and that A. M. High-tower in his conveyance to the plaintiff and his sister specifically described other lots of land therein conveyed, but did not specifically describe the premises in dispute, are not sufficient to show or authorize the jury to find that his possession originated ip fraud.
3. The evidence introduced by the defendant does not make a case which will defeat the prescriptive title thus acquired by the plaintiff. The defendant not having acquired color of title to the land in dispute until 1901, and his only claim to the land in dispute being a prescriptive title, which he claims had accrued after the plaintiff and his sister had acquired the prescriptive title resting in A. M. Hightower, prescription would not run in his favor, for the reason that both parties thereafter would be in constructive possession of the same land, and no prescription would arise in favor of the defendant (Civil Code (1910), § 4166), sufficient to defeat the plaintiff’s previously acquired prescriptive title.
4. Applying the above principles, the court erred in not granting a new trial on the general grounds complaining that the verdict for the defendant was contrary to the evidence.