GA Code § 44-5-85 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 5 - Acquisition and Loss of Property|Article 4 - Gifts Generally|Part 1 - Inter Vivos Gifts|§ 44-5-85. Rebuttable Presumption of Gift of Lands Belonging to Parent but in Possession of Child for Seven Years

 The exclusive possession by a child of lands which originally belonged to the parent or parents, without payment of rent, for the space of seven years, creates a rebuttable presumption of a gift and conveys title to the child. The presumption may be rebutted by evidence of a loan, of a claim of dominion by the parent or parents acknowledged by the child, of a disclaimer of title by the child, or similar evidence.   (Orig. Code 1863, § 2622; Code 1868, § 2622; Code 1873, § 2664; Code 1882, § 2664; Civil Code 1895, § 3571; Civil Code 1910, § 4151; Code 1933, § 48-106; Ga. L. 1998, p. 1304, § 1.)   Law reviews.   - For comment on Harper v. Hudson, 210 Ga. 751, 82 S.E.2d 854 (1954), see 17 Ga. B.J. 391 (1955).   JUDICIAL DECISIONS   Section formerly referred only to lands of father.    - Former statute distinctly said, and dealt with, lands belonging to the father, and may not be extended to include lands belonging originally to the mother. Holton v. Mercer, 65 Ga. App. 53, 15 S.E.2d 253 (1941); Owens v. White, 218 Ga. 1, 126 S.E.2d 425 (1962) (see O.C.G.A. § 44-5-85).    Statute is not a part of the law of prescription. It is explicit in its terms, and is restricted to cases where possession for seven years raises a presumption, as between parent and child, that the title passed originally by gift. Mitchell v. Gunter, 170 Ga. 135, 152 S.E. 466 (1930) (see O.C.G.A. § 44-5-85).   Intent to make present transfer necessary for gift.    - To constitute a valid gift, there must be an intention by the donor to transfer to the donee an immediate present interest, and not a mere future interest, or to make a testamentary gift. May v. May, 165 Ga. App. 461, 300 S.E.2d 215 (1983).   Gender bias was eliminated when law passed and not when amendment codified.    - When the trial court granted summary judgment to mother against her six children who sought declaration of title to the house, because the words "parent or parents" did not replace the word "father" in the statute until the Official Code of Georgia was adopted in 1982, the trial court incorrectly reasoned that seven years had not run against the mother's interest in the property to invoke the statute; this section was amended sub silentio in 1979 after Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), when the legislature passed 1979 Ga. L. 466, and not in 1982 when the amendment was officially codified in the new code; thus, the omission of a presumptive right against the mother was not fatal to the children's cause of action. Sims v. Holtzclaw, 259 Ga. 537, 384 S.E.2d 656 (1989).    This statute applies only if there is a delivery, or if the donee is in actual possession for the seven-year period. Burch v. Burch, 96 Ga. 133, 22 S.E. 718 (1895); Cowdrey v. Barksdale, 16 Ga. App. 387, 85 S.E. 617 (1915); Lanier v. Holt, 18 Ga. App. 185, 89 S.E. 182 (1916) (see O.C.G.A. § 44-5-85).    No presumption arises from an expressed intention to give. Such a presumption arises only if there is an actual delivery, or if the donee is in exclusive possession. Cowdrey v. Barksdale, 16 Ga. App. 387, 85 S.E. 617 (1915).   Gift conclusively presumed.    - In a proper case when this statute applies, the gift is conclusively presumed under its very terms, and no proof touching such gift is required. Harden v. Morton, 195 Ga. 471, 24 S.E.2d 685 (1943) (see O.C.G.A. § 44-5-85).   Presumption not confined to written gift.    - Presumption is not confined to a gift by writing. The presumption may arise though it be certain that the father retained the paper title, and though that fact be admitted by the son. The assertion of dominion by the father which the statute contemplates is over the property not merely over the paper title. Johnson v. Griffin, 80 Ga. 551, 7 S.E. 94 (1888).   Mere promise not equivalent of a gift.    - While in a gift from a father to a son the law will dispense with some of the formalities of delivery, a mere promise to give is not the equivalent of a gift itself. Donaldson v. Everett, 122 Ga. 318, 50 S.E. 94 (1905).   "Child" construed.    - Term "child" in this section does not include a bastard. Floyd v. Floyd, 97 Ga. 124, 24 S.E. 451 (1895); Johnstone v. Taliaferro, 107 Ga. 6, 32 S.E. 931, 45 L.R.A. 95 (1899).    Possession may begin during minority. Whitton v. Whitton, 218 Ga. 845, 131 S.E.2d 189 (1963).   Possession during minority.    - Presumption of a gift may arise in favor of a child whose possession began during minority if, at or before the time when the child went into possession, the child had been manumitted by the parent. In case a parent and minor child reside together upon land, the possession during the child's minority is presumptively that of the parent; but this presumption may be overcome by clear and unequivocal proof showing that the parent had actually surrendered to the child the exclusive control of and dominion over the property. Holt v. Anderson, 98 Ga. 220, 25 S.E. 496 (1896).   Death of father before expiration of seven years.    - If the father dies before the seven years is complete, the presumption provided in this statute does not exist. Roe v. Doe, 48 Ga. 332 (1873) (see O.C.G.A. § 44-5-85).   Reentry by parent.    - When a possession of this kind has begun, and title under it is ripening, it would undoubtedly be the right of the father, at any time before the expiration of the seven years, to reenter; and in this event the prior possession of the son would count for nothing. In other words, he would acquire no conclusive right as against the father, nor have title at all, until the full completion of the seven years. Harden v. Morton, 195 Ga. 471, 24 S.E.2d 685 (1943).    If the possession of the child is exclusive the statute is satisfied even though the father returned and stayed in the house for a few weeks during the seven-year period. Whitton v. Whitton, 218 Ga. 845, 131 S.E.2d 189 (1963).   Judgment against father bars gift.    - Until a gift of land by a father to his son was completed a judgment against the donor would bind the land and prevent the subsequent completion of the gift. Jones v. Clark, 59 Ga. 136 (1877); Hughes v. Berrien, 70 Ga. 273 (1883).   Creditor of donee.    - Land held by a son for less than seven years under a parol gift from his father is not subject to execution in favor of the son's creditor, against the claim of the father, though the son may have erected valuable improvements on the faith of the gift. The legal title remaining in the father, and the son's remedy being by a suit for specific performance of the voluntary agreement, his creditor must resort to a like remedy. Harvey v. West, 87 Ga. 553, 13 S.E. 693 (1891).   Loan of property and acknowledgment by child of claim.    - When the only defense was that the child went into possession under agreement that the land was loaned to the child, it was error to charge the jury that the jury could not find for the father unless the jury believed from the evidence that the child not only took possession as a loan, but also acknowledged a claim of dominion by the father, or disclaimed title. Hardman v. Nowell, 84 Ga. 46, 10 S.E. 370 (1889).   Purchase of part of land not disclaimer of title.    - Consent of the wife, before the expiration of the period of seven years after she went into possession of the land in controversy under an alleged parol gift, to the purchase of a small part of the land by her husband from her father, the alleged donor, while a circumstance to be considered by the jury together with other evidence in the case, is not, as a matter of law, inconsistent with the claim of the wife that there was a gift by the father, that she had not disclaimed title, and that there had not been a claim of dominion by the father acknowledged by the donee. Holloway v. Hoard, 140 Ga. 380, 78 S.E. 928 (1913).   Section inapplicable when son purchases property upon contingency.    - When a son purchased land from his father and took a contract in the nature of a bond for title, providing for the making of a conveyance upon the happening of a named contingency, and entered into and held possession thereunder, this statute has no application. Graham v. Peacock, 131 Ga. 785, 63 S.E. 348 (1909) (see O.C.G.A. § 44-5-85).   Proof of possession.    - When it is claimed by the alleged donee, under the provisions of this statute, that possession has been had by the donee for the statutory period, this allegation is supported by proof of possession by the donee for a part of that period and by the donee's tenants for the remainder of the period, even though one of the tenants was the father of the donee, when it appears that the father actually paid rents to the donee during the period of the father's occupancy and recognized the donee as the father's landlord. Holloway v. Hoard, 140 Ga. 380, 78 S.E. 928 (1913).   Gift subject to deed to secure debt.    - Fact that a deed to secure debt exists means that the grantor does not hold complete title, but it does not prevent the grantor from conveying that which the grantor owns and the effect of O.C.G.A. § 44-5-85 in a situation such as this is a gift by operation of the statute, subject to the deed to secure debt. Ivey v. Stanley, 272 Ga. 180, 526 S.E.2d 331 (2000).   Question for jury.    - It is for the jury to say whether the evidence is sufficient to show exclusive possession, without disclaimer or loan or dominion, each point to be settled by the weight of the evidence thereon. Hughes v. Hughes, 72 Ga. 173 (1883).   Conveyance by parent before expiration of seven years.    - When, before child had been in possession of property for seven years, the child's parent conveyed legal title to another and legal title never returned to the parent, the child did not receive title through a presumptive gift from the child's parent. Tucker v. Addison, 265 Ga. 642, 458 S.E.2d 653 (1995).   Possession was not exclusive.    - Child could not show child was in exclusive possession of a farm because, within a few years after the parent purchased the farm, the parent moved houses onto the farm and rented the houses for the parent's own benefit. Chapman v. Quinn, 267 Ga. 829, 483 S.E.2d 580 (1997).    Cited in Daniel v. Frost, 62 Ga. 697 (1879); Thaggard v. Crawford, 112 Ga. 326, 37 S.E. 367 (1900); Coffey v. Cobb, 143 Ga. 539, 85 S.E. 693 (1915); Doe v. Newton, 171 Ga. 418, 156 S.E. 25 (1930); Kerr v. Kerr, 183 Ga. 573, 189 S.E. 20 (1936); Mitchell v. Hunt, 185 Ga. 835, 196 S.E. 711 (1938); Moore v. Segars, 192 Ga. 190, 14 S.E.2d 752 (1941); Holton v. Mercer, 195 Ga. 47, 23 S.E.2d 166 (1942); Davis v. Davis, 199 Ga. 149, 33 S.E.2d 429 (1945); Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945); North v. Tolbert, 80 Ga. App. 110, 55 S.E.2d 661 (1949); Harper v. Hudson, 210 Ga. 751, 82 S.E.2d 854 (1954); Davis v. Newton, 215 Ga. 58, 108 S.E.2d 809 (1959).   RESEARCH REFERENCES   Am. Jur. 2d.   - 38 Am. Jur. 2d, Gifts, § 62.   C.J.S.   - 38 C.J.S., Gifts, § 91.   ALR.    - Right of child en ventre sa mere to take under a conveyance or devise of present interest to parent and children, 50 A.L.R. 619.   Adverse possession under parol gift of land, 43 A.L.R.2d 6.   Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.