2020 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 7 - Prescription
§ 44-5-170. Effect of Disabilities on Commencement of Prescription
Prescription shall not run against the rights of a minor during his or her minority, a person incompetent by reason of mental illness or intellectual disability so long as the mental illness or intellectual disability lasts, or a person imprisoned during his or her imprisonment. After any such disability is removed, prescription shall run against the person holding a claim to realty or personalty.
(Laws 1767, Cobb's 1851 Digest, p. 559; Ga. L. 1855-56, p. 233, § 19; Code 1863, § 2645; Code 1868, § 2644; Code 1873, § 2686; Code 1882, § 2686; Civil Code 1895, § 3593; Civil Code 1910, § 4173; Code 1933, § 85-411; Ga. L. 2015, p. 385, § 4-9/HB 252.)
The 2015 amendment, effective July 1, 2015, in the first sentence, inserted "or her" twice, substituted "intellectual disability so" for "retardation as", and substituted "intellectual disability" for "retardation".
Editor's notes.- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"
JUDICIAL DECISIONS
History of section.
- See Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931).
Exceptions named in statute. Dean v. Feely, 69 Ga. 804 (1883).
Prescription may run against wife in favor of husband.- Prescription as to property, other than the home, may run against a wife in favor of the husband, though living together. Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931).
Prescription will not defeat rights of minors during infancy, nor persons under disability or pending disability. Miles v. Blanton, 211 Ga. 754, 88 S.E.2d 273 (1955).
As to infancy in general, see Ladd & Wilson v. Jackson, 43 Ga. 288 (1871); Buchan v. Williamson, 131 Ga. 501, 62 S.E. 815 (1908).
Transferee's claim of adverse possession failed as such could not be based on a period of time in which the opposing landowner was a minor. Reece v. Smith, 276 Ga. 404, 577 S.E.2d 583 (2003).
Prescription cannot run against infants with legal title.
- When the legal title to property is vested in a trustee for an infant, and when the trustee fails to sue for the title, so that the trustee's right of action is barred, the infant cestui que trusts, who have only an equitable interest in the property, will be also barred, but when the legal title is vested in the infants, or cast upon them by operation of law, then the statute does not run against them during their infancy. Wingfield v. Virgin, 51 Ga. 139 (1874).
Prescription cannot run against equitable estate when no one authorized to assert rights.
- Time does not run against the equitable estate of minors since the legal estate does not reside in one authorized to assert their rights. Vinton v. Powell, 136 Ga. 687, 71 S.E. 1119 (1911). See also Buchan v. Daniel, 147 Ga. 450, 94 S.E. 578 (1917).
Grantor without mental capacity to understand simple subjects or transact business cannot undertake recovery suit.
- If the grantor as alleged did not have the mental capacity to understand simple subjects or to transact any business during the time in question, the grantor would not have had the sufficient mental capacity to undertake to maintain a suit for the recovery of the grantor's property. Mullins v. Barrett, 204 Ga. 11, 48 S.E.2d 842 (1948).
Cancellation of deed authorized when pronounced mental weakness, united with undue influence by fiduciary.
- While a mere allegation of weakness of mind not amounting to imbecility is not sufficient to set forth a cause of action for the cancellation of a deed, there being no allegation of fraud or undue influence, nevertheless, when the mental weakness is pronounced, such as would prevent the grantor for understanding the nature of the grantor's act at the time the deed was executed, and especially when as alleged the mental impairment is united with alleged undue and controlling influence on the part of one occupying a confidential relationship with the illiterate grantor, it will authorize a cancellation on the ground of fraud. Mullins v. Barrett, 204 Ga. 11, 48 S.E.2d 842 (1948).
Widow insane at date of husband's death is not barred from applying for dower until seven years after the removal of her disability. LaGrange Mills v. Kener, 121 Ga. 429, 49 S.E. 300 (1904).
Lucid intervals may be aggregated to bar action.
- Though no prescription works against the rights of an insane person so long as the insanity continues, yet different lucid intervals, amounting in the aggregate to as much as seven years, may be put together, and the effect will be to bar the right of action. Verdery v. Savannah, F. & W. Ry., 82 Ga. 675, 9 S.E. 1133 (1889).
As a general rule, a party cannot hold a lien on one's own property; and this is never allowed except when equity intervenes to protect the title and thereby prevent a failure of justice. Wrenn v. Massell Inv. Co., 56 Ga. App. 802, 194 S.E. 263 (1937).
Cited in Kelley v. Spivey, 182 Ga. 507, 185 S.E. 783 (1936); Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941); Gay v. Radford, 207 Ga. 38, 59 S.E.2d 915 (1950); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Jordan v. Robinson, 229 Ga. 761, 194 S.E.2d 452 (1972); Whitworth v. Whitworth, 233 Ga. 53, 210 S.E.2d 9 (1974); Mobley v. Jackson Chapel Church, 281 Ga. 122, 636 S.E.2d 535 (2006).
