The controlling question being whether or not the title by prescription asserted by plaintiff in error had been established, the evidence demanding a finding that it had, and the verdict being in effect to the contrary, it was erroneous to refuse to grant a new trial.

No. 14214. JULY 14, 1942.

This suit involved title to sixty acres of land. The following stipulation was entered into: A prima facie case was admitted in favor of the plaintiff; that is, it was admitted by the defendant's attorneys that unless the defendant had a good prescriptive title to the premises in dispute, the plaintiff should recover the land sued for, and that defendant should be enjoined as prayed for in the petition. On the other hand it was admitted by the plaintiff's attorneys that if defendant Dyal had a good prescriptive title to the premises in dispute, the plaintiff would not be entitled to prevail, but in such event the verdict should be for the defendant.

The material portions of the testimony of defendant Dyal, as a witness for himself, were as follows: "I came up to Dodge County court-house about the 30th day of November, 1928, and was in the office of the commissioner of roads and revenue. Mrs. W. P. Cobb, who was the clerk of the county commissioner at the time, told me that she had several small tracts of land for sale for the county in my vicinity. I bought three tracts at that time, and this tract was included in them. I mean the tract involved in this suit. On this particular tract, it had been abandoned for a long time, and I went into immediate possession of it. At that time in 1928 there were no buildings and no fences on it, and the cultivated part had grown up in oak and pine saplings and grass. I began improving the property shortly after I bought it. I had two wells dug that cost me $25. I built a tenant-house on it that cost me about $300. I built a two-mule barn with feed room at a cost of about $250. I started a chicken-farm on the place, and built several large and small chicken-houses at a cost of about $300. I put a wire fence around the property at a cost of about $250. I cleared up about twenty-five acres of land. I farmed part of the place with tenants practically every year since 1928 through 1939. I have worked the turpentine timber on the place continuously every year up to the present since 1928. I kept turpentine hands living on the place since 1928, through 1939, and worked the place every year. About this check and lease to Mrs. Sanders. This check is signed Dyal Naval Stores Company by F. L. Dyal. In 1928 when this check and lease was made, Dyal Naval Stores Company was a partnership composed of my mother, my brother, and my sister. They had a manager named S. A. Clements, who looked after the business and who took lease on turpentine timber. When he found a place he wanted to lease he came to me, and I would make out the lease and fix up the check. That is all I had to do with it. I just signed the checks for him when he would come to me. I didn't know who Mrs. H. E. Sanders was at that time. Mr. Clements must have come in and told me about the lease, and I filled it out and signed the check. I didn't pay any attention to whom the check and lease was made. I merely followed Mr. Clements' instructions. I entered this property in good faith. I worked it, cultivated it, improved it, and I held adverse possession against all claimants, under my deed from Dodge County, uninterruptedly, quietly, peaceably, and unmolestedly from the time I bought it in 1928 until 1939. No one ever contested my title until 1939, when H. E. Sanders claimed it as the property of his wife. They never did claim it before that time. Nothing was ever said to me from 1928 until 1939, eleven years, by any one about my title from Dodge County, and no one ever contested or objected to my possession until Mr. Sanders did for his wife in the fall of 1939. I held the property under this deed from Dodge County for over eleven years, quietly, peaceably, continuously, and without interruption, and worked it every year, besides my improvements. I returned the property for taxes in my name every year from 1928 through 1939, and the 1940 and 1941 taxes are against me on this same property. . . I thought Dodge County owned the property at the time I bought it, and that they had a right to sell it. When I bought the property I did not know whose property it was, whether it was Doc Sanders' property or Mrs. Sanders'. I thought it belonged to Dodge County, and I bought it from Dodge County. Yes, I had several tenants over a period of years on the place."

William Burch testified as follows: "Mr. Dyal has had possession of this place since 1928. I have lived in that vicinity since 1925. This place seemed to be abandoned for several years before Mr. Dyal took possession of it in 1928. Mr. Dyal worked it for turpentine purposes and farmed it from 1928 through 1939. About 1929 I sold him the posts for his fences, and helped Mr. Dyal estimate the cost to build the fences and buildings. He cleared about twenty-five acres of land that had grown up in grass and young trees. He built several chicken-houses, a tenant-house and a barn, and he dug some wells on the place. He started a seven-room house on the place to live in himself, but he never did complete it. He moved this house off in 1940. Mr. Dyal farmed and worked the turpentine timber on this place for about eleven years. Yes, eleven years continuously. He claimed it as his property all that time, and still does. He kept somebody, different ones, living on the property all the time for eleven years."

Fred Jones testified as follows: "I am tax-commissioner of Dodge County. The records show that F. L. Dyal has paid taxes on this property from 1928 through 1939. The records show that F. L. Dyal has returned this property for taxes from the year 1928 through the present year. This return you are showing me on the 1927 tax digest was returned, it shows, by Doc Saunders. I do not know Doc Sanders. I do not know Ida Pearl Sanders. I was not tax-commissioner in 1927." The deed from Dodge County to the defendant was in evidence, dated November 30, 1928, conveying the land in dispute, which recited that Dodge County was the purchaser thereof on the first Tuesday in November, 1928, at a sheriff's sale for taxes due for the year 1927, the property being sold as that of Doc Saunders.

For the plaintiff H. E. Sanders swore as follows: "I am H. E. Sanders, husband of Ida Pearl Sanders, the plaintiff in this case. She is also known as Mrs. H. E. Sanders. I am her agent in this matter, and looking after it for her. My wife is the owner of the property involved in this suit. She bought it from S.E. Thomason, and paid $1200 for it, and this is the deed. We moved to Florida about twenty years ago, and still live there. I came to McRae, Georgia, in August, 1939, to see about an estate of my wife's people in Telfair County. While I was seeing about this I heard that F. L. Dyal was claiming this place here in Dodge County which is involved in this suit. I went to see him about this and told him the place belonged to my wife, and that I was going to remove the tenant that he had on the place. I did this, and then put a tenant for my wife on the place. I then went back and told Dyal that I had removed his tenant and placed my wife's tenant on the place, and that he was in possession for her, and there has been a tenant on the place ever since, and she has one there now. Dyal told me that he claimed title to the place under a deed from Dodge County. This is a certified copy of the deed to him from Dodge County and the consideration of the deed $35.39. I rented the place for 1940 to J. H. Yawn, and again for 1941. Yes, this is the rent note that Yawn gave my wife. He is in possession of the place now as my wife's tenant. On October 3, 1928, which was about a month before he bought the place from Dodge County, Dyal wrote to my wife at her address in Florida, trying to lease the timber on this place for turpentine purposes, and enclosed a lease for her to sign and also a check for the sum of $150 for the payment on the lease. This is the lease and check that he mailed to her. She did not want to lease this place, and she never did sign the lease or cash the check. She just kept it. When we moved to Florida there was a tenant-house and barn on the place, and there was about thirty acres in cultivation that was fenced in with a good fence. I would say that the place was worth at least $600 at the time it was sold for taxes and bought by Dodge County. . . I am agent for my wife in this matter. I did not pay any taxes on this place myself. I don't know whether my wife did or not. I haven't returned it for taxes myself, and I don't know whether she did or not. She did not abandon the property. We moved to Florida to live, and left it. No, I did not try to rent the place to anybody during the time we were living in Florida, and I don't know whether she tried to or not. I am not known or called Doc. I am a pharmacist, and people sometimes call me Doctor. When we moved to Florida there was a good tenant-house on the place. The cultivated tract was also fenced. When I came back up to Georgia in 1939 there was a tenant-house on the place, and a barn. There was also an old wire fence around the cultivated tract on the place. There was also a dwelling-house that had been started but never completed. Dyal moved this off last year after this suit was filed. These improvements were not worth much, in my opinion. The tenant-house was worth about $50, or $100, and the barn about $10, and the so-called chicken-houses were not worth much. I found out that Mr. Dyal was trying to claim this property when I came back to Georgia in 1939, and that he was working the turpentine timber on it. The value of the timber lease, according to his own proposition in the beginning, was worth $150 every year, rental value. I don't know how much farming he has done on the place or how much land he cleared. The tenant-house I found there in 1939 was not the same one that was there when we moved to Florida. The house that was there then was a better tenant-house than the one there now, and the fencing on the place was in better condition than that there now. I don't know whether my wife considered the property worth returning for taxes or not. I have not returned it for taxes, or paid any taxes on it for her since we moved to Florida. I don't know whether Mr. Dyal paid taxes on it or not. When we left Georgia I would say that the property was worth five or six hundred dollars. It was worth at least $600 at the time of the tax sale."

J. H. Yawn testified that he counted 500 turpentine cups on the place. W. H. Yawn testified: "Nobody farmed or cultivated this land from 1933 until 1939. I know, because I was living right next to the place and saw it every day. The house and other building on the place were run down pretty bad, and the fence was down. So far as I could tell, nobody was looking after the place because my cows frequently got out and went in the field over there, and I would go over there and drive them out. This happened frequently, every week or so. They could get in the field because the fence was down and nobody kept it up. There wasn't any chicken farm there since I have been living at my place from 1933. Mr. Dyal kept somebody living in the house on this place pretty near all the time. Sometimes there wasn't anybody living in the house, but there was somebody living there most all the time. They were his turpentine hands, I think. I know Mr. Dyal worked turpentine on the place and kept hands living in the house there pretty near all the time. Nobody farmed the place from 1933 until 1939."

The plaintiff introduced in evidence deed from Mrs. S.E. Thomason to Mrs. Pearl Sanders, dated October 27, 1921, conveying the land in dispute.

The record contains an agreement by the parties, that a prima facie case was admitted in favor of the plaintiff; that unless the defendant had a good prescriptive title, the plaintiff should recover; but that if the defendant showed a good prescriptive title, the verdict should be in his favor. The jury found for the plaintiff. The defendant's motion for new trial, on the general grounds, was overruled, and he excepted.

GRICE, Justice.

The trial court correctly charged the jury that the burden was on the defendant to prove his prescriptive title by a preponderance of the evidence. The apparent ruling in Durham v. Holeman, 30 Ga. 619 (7), that when the plaintiff's title or cause of action is plainly made out, and the defendant relies on a special plea in bar to defeat the recovery, such as the statute of limitations, the defendant must establish the facts to sustain the plea affirmatively beyond a reasonable doubt, else the verdict must be against the plea, was explained in Schnell v. Toomer, 56 Ga. 168, where the trial judge was upheld for refusing a request to charge that the plea of the statute must be supported by proof so conclusive as to exclude reasonable doubt. That the burden is on him who relies on prescriptive title, is governed by the rule laid down in the Code, § 38-105: "In all civil cases the preponderance of evidence is considered sufficient to produce mental conviction." Where the evidence is in conflict, it is the jury's province to determine where the preponderance lies; and when such finding is approved by the trial judge, that issue must be regarded as settled. When, however, the evidence as a whole, with all reasonable inferences and deductions to be drawn therefrom, presents no conflict in any material particular, and points only to one result, and in that sense there is no question of fact to be determined, then it becomes a question of law, when the same is properly presented, to decide whether the verdict is supported by the evidence. Error being assigned on the denial of a motion for new trial, it becomes the duty of this court to examine the proofs, and to ascertain whether the verdict can legally stand under this record.

The defendant's title by prescription is based on seven years possession under color. This suit was commenced on December 22, 1939. His color consists of a deed from Dodge County to him, dated November 30, 1928, the county having received a deed from the sheriff, based on a sale under a 1927 tax fi. fa. issued against Doc Saunders. So far as appears from this record, the sale of Mrs. Sanders' property under a tax execution against Doc Saunders was invalid; but it will not be concluded that on that account the plaintiff in error can not prescribe as against the true owner. Compare Bower v. Cohen, 126 Ga. 35 ( 54 S.E. 918), and what is said in division 5 of the opinion in that case. Dyal testified that he went into immediate possession of it, fenced it, and remained in possession for more than seven years; that he entered in good faith; that his possession had been uninterrupted and peaceably held from the time he purchased it in 1928 until 1939. Without more, this would have demanded a finding in his favor. Code, § 85-401 et seq. He entered under written evidence of title, and remained in possession for more than seven years. § 85-407. That he was in actual possession is shown by the fact that he immediately enclosed the land with a fence (§ 85-403), and this fence remained. We pass by the fact that he turpentined the pine trees continuously; for it has been held that this fact alone will not necessarily show such possession as will satisfy the statute. Flannery v. Hightower, 97 Ga. 592 ( 25 S.E. 371); Walker v. Steffes, 139 Ga. 520 ( 77 S.E. 580); Brown v. Wells, 161 Ga. 413 ( 131 S.E. 159). We likewise discard the fact that for nearly the whole period he had tenants residing thereon; for, according to the witness W. H. Yawn, these did not continuously reside thereon, and it is not shown that this interruption was merely occasioned by the short hiatus necessary between the time an old tenant vacated and a new one moved in, Huggins v. Crow, 32 Ga. 367. There is no dispute, however, as to the testimony that the fence which Dyal placed around the premises remained for more than seven years. This evidence of his possession is not rendered abortive by the fact that it was shown that at times this fence was in places down, and neighboring cattle would go within the enclosure. The fact of Dyal's actual possession, evidenced by the enclosure, is not therefore, under the evidence, in dispute. It is, however, insisted that the jury were authorized under the entire evidence to find that his possession did not originate in good faith, for these two reasons: First, Dyal when he entered knew that Mrs. Sanders had title. The basis of this contention is the proof in the testimony of H. E. Sanders and Dyal himself, that on October 3, 1928, Dyal mailed a contract for her to sign in relation to the turpentine privileges thereon. It is claimed that this showed that Dyal's entry was not in good faith In reply to this insistence it may be noted that this was before the tax sale. In further reply, it may be observed that the testimony of Dyal, set forth in the report of the facts, as to the circumstances under which the lease was sent to Mrs. Sanders, is undisputed, and absolves him from the imputation which standing alone it might carry, thus making inapplicable the rule recognized in Virgin v. Wingfield, 54 Ga. 451, that "In this State, if one buy land and go into possession thereof, with the full knowledge, in fact, that this vendor has no right to sell, and no title to convey, this is evidence to go to the jury, upon the question of the bona fides of his possession." The testimony as to this particular matter, in so far as pertinent at all, calls for the application of the doctrine announced in Lee v. Ogden, 83 Ga. 325 ( 10 S.E. 349), to the effect that mere notice of an outstanding title is not evidence of bad faith, and that good faith is not inconsistent with such notice. Williams v. Smith, 128 Ga. 306 ( 57 S.E. 801). If it were to be conceded that Dyal had knowledge, before the sale, that Mrs. Sanders owned this property, it does not follow that this showed that when nearly two months thereafter he purchased from the county, which had bid it off at a tax sale, he knew he was not obtaining a good title. The circumstances under which he bought, as set forth in the record, are consistent with his own testimony that he purchased in good faith. It is true that upon receipt of his deed he was charged with constructive notice that the land was sold as the property of Doc Saunders, but there is no proof that he had actual knowledge of that fact. The notice which will prevent a purchaser from acquiring a valid title by prescription must be more than constructive notice. If the law were otherwise, there would be no room in most cases for the application of the doctrine of prescription.

The second reason suggested as to why the jury were authorized to find that Dyal did not enter in good faith, and that his possession can not avail him in establishing a prescriptive title, is that at the time of his purchase and entry there was on record a deed from Mrs. Thomason to Mrs. Sanders, purporting to vest in her title to the whole sixty-five acres, and a fence surrounding a thirty-acre field located on that tract; and that this fence was notice to Dyal. What notice to Dyal was given by the presence of this thirty-acre enclosure of a field once cultivated, but at the time grown up in oak bushes or small trees, no one residing on any part of the sixty-five acres, and none of it being in cultivation? According to the undisputed testimony, the scene which met the eye of the prescriber when he first entered bore every evidence of an abandonment of the possession. The fence which, according to one portion of the testimony, was around a portion of the tract, enclosed a field that had once been cleared, it is true, but had not been cultivated for at least several years. The tenant-house, once on the place, was no longer there. No one was residing on the premises, and there were on it no crops, or anything to suggest that crops had been recently grown there. In such a setting, the fence was notice rather of an abandonment than of a present claim of ownership, and its presence was not sufficient to authorize the conclusion that because of it his entry was fraudulent. It must be remembered that he purchased from the county, which in turn had bid in the land at a tax sale. It will not be adjudged that under such circumstances one who enters otherwise in good faith will be held to have been guilty of such notice of the claim of the original owner as would render his entry fraudulent, under the Code, § 85-402. Compare Mohr v. Dubberly, 165 Ga. 309 ( 140 S.E. 856); Graham v. Lanier, 179 Ga. 744 ( 177 S.E. 577). The premises were vacant. The owner had some years ago moved away, and left no one in charge of them. They had been sold for taxes. The owner had not for many years returned them for taxes. Eleven years after the purchaser had bought the land, fenced it, occupied it, paid taxes on it, the original owner returns, finds Dyal's tenant residing thereon, removes him, and brings this suit. Under this record, Dyal had acquired a prescriptive title; and the court should have granted a new trial.

Judgment reversed. All the Justices concur.