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113 Ga. 18

Gunter v. Smith

Supreme Court of Georgia

Decided March 25, 1901

Supreme Court of Georgia · decided 1901-03-25

<p>Equitable petition. Before Judge Reese. Hart superior court. March 19, 1900.</p>

Relies on Polhill v. Brown · Roe v. Doe ex dem. Tait · Johnston v. Neal

Good law ✅— No negative treatment on recordhow we know

Decided 1901-03-25

How this case has been cited

Cited by 26 later decisions — most recently April 2013 · most notably Henderson v. Nolting First Mortgage Corp. (1937), Harris v. Powers (1907)

25 state decisions

80190119101920193019401950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Cobb, J.

¶11. There is in this State no statute of limitations applicable to an action for the recovery of land. Pollard v. Tait, 38 Ga. 439 (2); Johnson v. Neal, 67 Ga. 528.

¶22. If in an action for the recovery of land it appears upon the face of the petition that the defendant has acquired a prescriptive title to the land in controversy, as against the plaintiff, such defect in the plaintiff’s case may be taken advantage of by demurrer.

¶33. If the grantee in a security deed goes into possession of the land thereby conveyed under no other claim than such a deed, he is in possession simply for the purpose of applying the rents, issues, and profits to the satisfaction of his debt, and'when the net amount received by him from the proceeds of the land is equal to or greater than the amount of his debt, his right of possession ceases, and the grantor, or his legal representatives, and if none, his heirs, may bring an action to recover the land. Polhill v. Brown, 84 Ga. 338, 339 (10). The foregoing principle is especially applicable in a case where there was a distinct agreement between the grantee and the heirs of the grantor that possession was to be given for the purpose only of paying the debt out of the rents, issues, and profits.

¶44. Where the grantee in a security deed enters into possession of the property conveyed by such deed, the right of the grantor to redeem by the payment of the debt is never barred so long as the grantee recognizes a right to redeem, and equity would by analogy decree that the right to redeem would in no event be lost until after the expiration of ten years from the date of the last recognition by the grantee of the right to redeem. Civil Code, §2734.

¶56. The petition in the present case set forth a cause of action, and was not subject to any of .the objections set up in the demurrer.

¶6Judgment reversed.

All the Justices concurring.
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