Harper v. Paradise

Facts

On February 1, 1922, Susan Harper conveyed a 106.65-acre farm in Oglethorpe County by warranty deed to her daughter-in-law, Maude Harper. The deed gave Maude a life estate (an interest lasting for her lifetime), with the remainder in fee simple (the full interest left after the life estate ends) to Maude's named children. The deed was lost or misplaced until 1957, when Clyde Harper, one of the named children, found it in an old trunk. It was recorded in July, 1957. Susan Harper died sometime during the period 1925-1927. In 1928 her then living heirs, except John W. Harper, Maude's husband, signed a quitclaim instrument (a release of whatever interest the signers had) to Maude, recorded March 19, 1928. It recited that Susan's earlier deed to Maude had been lost or destroyed, that the new instrument was to take its place, and that Maude was in possession. On February 27, 1933, Maude executed a security deed purporting to convey the entire fee simple to Ella Thornton to secure a loan. The loan went into default, and Thornton foreclosed and received a sheriff's deed in 1936. An unbroken chain of record title ran from Thornton to Lincoln and William Paradise, who claim under a 1955 warranty deed. They also claimed possession by themselves and their predecessors beginning in 1940. Maude died in 1972, and her children and the representatives of deceased children sued to recover the land.

Issues

1. Can the Paradises use Code § 67-2502 to treat the 1928 instrument and the 1922 deed as coming from the same source, so that the 1928 instrument, recorded first, has priority under Code § 29-401?
2. Were the Paradises required to inquire into the earlier lost or misplaced deed, given what the 1928 instrument recited?
3. Did the Paradises gain prescriptive title (title by long possession) against the remaindermen through possession that began in 1940?

Holding

Code § 67-2502 did not apply, because the 1928 instrument ran to the life tenant and its recitals negated any claim that the heirs were holding or apparently holding the land by will or inheritance. Those recitals put later purchasers on notice, so the first-recorded instrument had no priority and the Paradises had to inquire, and prescription had not run because the remaindermen had no right of possession until the life tenant died in 1972.