Simpson & Ledbetter vs. Mathis, sheriff; Morgan vs. Mathis, sheriff. other person on behalf of the state, although it was the only real party in interest, the sheriff being only a ministerial officer, with no personal interest in the litigation. UNDERWOOD & ROWELL; DABNEY & FOUCHE, for plaintiffs in error. C. ANDERSON, attorney general; JACKSON & KING, contra. JACKSON, Chief Justice. Section 4260 of the Code exacts that, "In cases of interpleader or otherwise, where the real contestant is not the opposite party on the record, notice shall be given to such real contestant in addition to the copy served as above." The state in this case is not the opposite party on the record, so far as the prayer for subpoena is concerned, or the filing of any answer by her in writing would make her a party technically to the bill for injunction; yet she is the real contestant. It is the levy of an execution in her favor which the bil's seek to enjoin, and therefore she is the only real contestant. She could not well be made a party by subpoena. The governor is her chief executive officer, and it is his duty to enforce process if necessary, and he cannot be made a party in that way; but, nevertheless, it is a case which the state contests, in which she seeks to collect an execution which is her property alone; the sheriff, as the levying officer, is a necessary party of record, because he is enforcing an illegal execution of the state on the property of her citizens; and the complainants were right in making him a party defendant of record, and praying the writ to issue, enjoining him. But all this merely shows that, though a necessary party, he is not the real contestant, because the money due on the executions will be the state's, not his; and the sole interest he has is his costs, which will be increased by the per cent he gets on the proceeds of sale, if the state succeeds in defeating the injunction. Thus Simpson & Ledbetter rs. Mathis, sheriff; Morgan vs. Mathis, sheriff. the state is the only real contestant, and service upon her by notice, in accordance with section 4260 of the Code, is essential to give this court jurisdiction to try her case. The chancellor below required notice to answer the restraining order upon the attorney general, in view of the obvious propriety of not enjoining the state's execution without notice to the officer of the state, whose duty it is to defend cases in which the state is interested, and through whom it is made the governor's duty to defend her cases. If the chancellor required the complainants to give notice below before he would act, much more, by the mandate of the law in section 4260, is it the duty of this court to require service of such notice upon that officer here, or before the case can be heard here, in order to confer jurisdiction on this court. The only notice which the statute contemplates anywhere is service of the bill of exceptions by copy thereof, or the waiver thereof entered thereon. No such service appears here, and indeed no notice of any sort to the attorney general or other officer of the state. It follows, necessarily, that the real contestant not having been served at all, the two cases must be dismissed. The only reply to the motion by counsel for plaintiffs in error here was that, in the case of Mayo, sheriff, vs. Wilson, 66 Ga., 408, this court held that the governor of the State was not a necessary party to the bill, and could not be made a party. This ruling was made on demurrer to the bill, on the ground that he was a necessary party, and the decision is that the governor could not be made one, for the reason given above in this opinion, that his great executive duty is to execute the process of the courts through the subordinate officers of the law, and this high office would not consist with service on himself of process which he himself was to see executed properly in the last resort. At the same time and under the same head, it was held in the Mayo case, that it was his duty to defend, by the attorney general, state cases, expressly by statute, Hunt et al. vs. Dunn et al. (Code, §§22, 44), and thus he was in by the attorney general, who filed the demurer for the sheriff, and appeared in the only way he could appear for the state. So in these cases, the attorney general appeared as the legal adviser and representative of the governor, for all practical purposes, and in the only way in which the chief magistrate could well appear for the state; and so necessary was his appearance deemed by the chancellor that he required notice to be served on him to attend the trial of the application for injunction below. So that the Mayo case is authority for the ruling we make now in these cases. That case rules that, for all practical purposes, the governor was in that case by his attorney general, and therefore was a party of record so far as he could be made one. If so, it furnishes only an additional reason for service of a bill of exceptions on the man who appeared for the state in these cases, and brings him almost, if not entirely, within the law requiring service on the opposite party to the record. Mayo, the sheriff, brought that case here, and of course no question of service on the attorney general was made; for Mayo's side was the state's side. Had Wilson brought that case here, and had not served the attorney general or the state, through some proper officer, with the bill of exceptions, and had a motion been made to dismiss it, it would have been and must have been dismissed, as these cases are. Writs of error dismissed. 74 120 105 150 105 554 74 120 110 62 74 120 q118 480 74 120 124 573 HUNT et al. vs. DUNN et al. 1. The written title on which a possession is based, to sustain a prescription, must be neither forged nor fraudulent, if notice of the fraud or forgery be brought home to the claimant before or at the time of the commencement of his possession. If a purchaser had actual notice that he was purchasing a bad title when he took possession, his purchase was bad, and he went into possession in fraud of the rights of the true owner. (a.) Whatever is notice enough to excite attention and put the party Hunt et al. vs. Dunn et al. on his guard and call for inquiry, is also notice of everything to which it is afterwards found that such inquiry might have led, although all was unknown for want of investigation; that is, where a person has sufficient information to lead him to a fact, he shall be deemed cognizant of it. (b.) Section 2685 of the Code is designed to protect a possession held under a title acquired in good faith, and not one taken in disregard of the rights of another person, of whose title the claimant had been informed, and about which, with proper inquiry, he might have had full knowledge. 2. This court has held that a possession originating in fraud cannot be tacked to one subsequently acquired, in order to complete the term of years necessary to give the tenant title by prescription, though such tenant be an innocent purchaser from the fraudulent grantor. 3. The newly discovered evidence relied on and set out in the affidavits accompanying the motion for a new trial was merely cumulative, and was properly disregarded by the court below; and the reception of an affidavit contradicting it, after the motion had been argued and before the judgment had been rendered, need not be considered. September 9, 1884. Title. Prescription. Fraud. Notice. Before Judge BROWN. Pickens Superior Court. May Term, 1884. Hunt et al. brought ejectment against Dunn et al., demises being laid in the name of Hunt, the drawer of the lot, down to Lyle et al., the real plaintiffs. Both the plaintiffs and defendants claimed by chain of title under the drawer of the lot, the title of plaintiffs being the older. Defendants set up prescription by adverse possession for more than seven years. In reply to this, plaintiffs insisted that in order to make out the title by prescription, it was necessary to tack to their own possession that of their predecessors in the title, whose possession was fraudulent, because they took with notice of the superior outstanding title of James Lyle, who was the ancestor of plaintiffs, under whom they claimed by inheritance. The jury found for the defendants. Plaintiffs moved for a new trial, one ground of the motion being that the ver Hunt et al. vs. Dunn et al. dict was contrary to law and evidence. The motion was overruled, and plaintiffs excepted. F. C. TATE; C. D. PHILLIPS, for plaintiffs in error W. H. SIMMONS; W. T. DAY, for defendants. HALL, Justice. Both parties to this suit claim under title purporting to emanate from the drawer of the lot of land in question; the plaintiffs' title is the older of the two, and was admitted to record before the defendants'. Two of defendants' feoffors, Thompson and Cross, purchased the land in 1868, some years after plaintiffs' title was registered, and took immediate possession of it. Thompson sold and conveyed his interest therein to Cross, on 25th of April, 1870, who remained in possession of the entire tract until May, 1876, when he sold and conveyed it to Sylvanus Moss and Anderson Moss. Sylvanus sold his interest to Anderson Moss in 1877, who had the possession until the land was sold and conveyed to Dunn, the tenant in possession and defendant in the suit, on the 9th day of January, 1877, and he remained in possession until the commencement of the present suit, on the tenth day of January, 1882. . The defence set up was seven years' adverse, continuous possession by the defendant and his feoffers under color of title. It was admitted by the plaintffs that the tenant in possession and those under whom he claimed had been in the uninterrupted and continuous possession of the land for more than seven years prior to the commencement of the suit; but they denied that the possession was adverse, and insisted that the possession and title of Thompson and Cross was fraudulent; that they had notice of plaintiffs' title before and at the commencement of their possession; that one of their immediate feoffors had notice of this title before they purchased and took possession; that without tacking defendant's possession to that of Thompson and |