McMullin v. Erwin

Bleckley, Judge.

1. If a man takes a color of title, whether bond or deed, from one whom he knows has no right to make it, he cannot use it as the basis of prescription, for to do so would be a fraud on the true owner. To deprive the owner of his property by such means would be to steal it. The law has better morality than to sanction that sort of a transaction. But all the turpitude of such a case lies in the mind. With knowledge, or even with well-founded belief, the intention is corrupt — the motive is impure, the man is bad, and his act is bad. Without such knowledge or belief, however, there is no moral wrong at the beginning, and the law leaves it to the conscience of the individual whether, after the statutory period has run out, he will yield to the former owner or not. • One may take a deed in. good faith, and, in good faith, claim and occupy under it,- though the maker of the deed was out of possession, and though he may never have had title. Erom neither of these facts, standing alone, nor from both of them together, does the law presume fraud in the purchaser. The question is, did he know or believe that his vendor did not have title or the right to convey. Generally, the presumption is in favor of good faith, and it is enough that indications of fraud are absent. The burden of proving fraud is on him who asserts it.

2. The possession need not be held, in person, by him who has color of title. He may hold by a tenant. The tenant’s possession is that of his landlord; -and the .landlord is the true possessor, within the meaning of section 2679 of the Code. If the tenant also has color of title, no prescription runs in Ms favor so long as he is tenant and claims, not for himself, but for his landlord. The title that grows up, under such circumstances, is in and for the latter.

3. We see no want of law or evidence to uphold the verdict.

Judgment, affirmed.