This case is a title dispute: appellants claim title by deed; appellees claim title by prescription. Appellants filed suit to enjoin appellees’ continuing trespass on the land in question; appellees answered with a claim that the estate they represent owns the property by virtue of more than 20 years of adverse possession. This appeal is from the grant of summary judgment to appellees.
1. In support of their motion for summary judgment, appellees, executors of the will of Leo N. Bateman, established by affidavit that Bateman had used the land continuously since 1948, more than 20 years, for keeping horses and cattle and for tree farming. The affidavits established specifically that trees were planted and harvested on the contested area by Bateman, that fire breaks were plowed and maintained by Bateman up to the boundary claimed by appellees, and that underbrush on the property was burned by Bateman and his agents. It was also established by appellees’ evidence that Bateman’s use of the land, adversely to appellants’ claim of title, was open and public. The evidence submitted in support of appellees’ motion for summary judgment was sufficient, in the absence of contradiction, to establish prescriptive title. See Cheek v. Wainwright, 246 Ga. 171 (1) (269 SE2d 443) (1980).
2. Appellants’ argument that their payment of taxes on the property raises a question of fact regarding possession is without merit. “Payment of taxes is not, as contended, evidence of title and ownership.” Mitchell v. Gunter, 170 Ga. 135, 146 (152 SE 466) (1930).
3. In an effort to show that Bateman’s use of the property was permissive, which would defeat a claim of adverse possession (Dickson v. Davis, 237 Ga. 883 (230 SE2d 279) (1976)), Mr. Brown testified by affidavit and on deposition that at the time he came into ownership of the land, he had given Bateman permission to run cattle on the strip of land now at issue. That testimony, being evidence of oral *7transactions with a person now deceased, offered in a suit against the representatives of the estate of the deceased person, is inadmissible, both at trial and on motion for summary judgment. Wilson v. Nichols, 253 Ga. 84 (1) (3) (316 SE2d 752) (1984). The transcript of the summary judgment hearing reveals that the trial court was aware that appellants could not prove permissive use in the way they sought to do so, and it is apparent that the trial court did not consider that testimony in deciding the issue of adverse possession. Under Wilson, supra, there was no error in failing to find a question of fact regarding permissive use.
4. Since adverse possession must be continuous in order to be part of the foundation of prescriptive title (OCGA § 44-5-161 (a) (3)), appellants offered an affidavit intended to show that Bateman’s possession of the property was interrupted sometime in the 1960’s by Mr. Brown’s action in ordering a crew cutting timber on the disputed property to leave. That affidavit, however, was not served until the dáy of the hearing on the motion for summary judgment and was not filed until some months later. “An affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered. [Cit.]” Brown v. Rowe, 178 Ga. App. 575 (1) (344 SE2d 245) (1986). There is nothing in the record of this case to show such allowance by the trial court, and the fact of the judgment against appellants indicates that the trial court did not consider the affidavit. We find no error and no abuse of discretion in that decision.
5. Relying on Malette v. Wright, 120 Ga. 735 (48 SE 229) (1904), appellants argue that Bateman could not adversely possess the property because he is a grantor of it. Malette has been limited to “its facts, which concerned the effect of a mistake in a deed upon an innocent purchaser.” Seignious v. MARTA, 252 Ga. 69, 73 (311 SE2d 808) (1984). In Malette, the grantor mistakenly included 75 acres in a warranty deed, but remained in possession of that 75 acres. The court ruled there that the grantor’s possession could not be notice of an adverse claim. The facts of this case are significantly different: Bate-man merely executed a quitclaim deed to the disputed property in favor of appellants’ grantor; there is no allegation of mistake; and the evidence of record does not show that Bateman remained in possession after executing the deed, which was dated almost 40 years before this suit was filed, just that he was in possession of it for the 30 years preceding this litigation. Malette, therefore, does not apply and the quitclaim deed was no impediment to Bateman’s adverse possession of the property.
6. In conclusion, it appears that appellees presented sufficient ev*8idence to establish a prima facie entitlement to a judgment declaring them to have title to the property involved, and that appellants were unable to create an issue of material fact such as would prevent the grant of summary judgment to appellees. There was no error, therefore, in the grant of summary judgment to appellees.
Judgment affirmed.
Judge Braswell D. Deen, Jr., Judge Harold R. Banke, and Judge Marion T. Pope, Jr. concur. Judge A. W. Birdsong, Jr., Judge George H. Carley, and Judge John W. Sognier dissent. Marshall, C. J., Clarke, P. J., Smith, Gregory, Weltner, Bell, and Hunt, JJ., disqualified.