
    *Richard Roe, casual ejector, and John G. McKee, tenant in possession, plaintiffs in error, vs. John Doe, ex dem. James McKee et al., defendants in error.
    (Atlanta,
    January Term, 1873.)
    (Trippe, Judge, was providentially prevented from presiding in this case.)
    1. Gift — Presumption—Statute of Limitations. — To make out a case of a presumptive gift of lands, under section 2622 of Irwin’s Revised Code, it is necessary to show that the exclusive possession of the child, without payment of rent, shall have continued seven years during the lifetime of the father, and if he (the father) die before the seven years is complete, the presumption provided for does not exist.
    2. Distribution of Estate — Presumption—Evidence.—The “distribution” of an estate is prima facie-presumed to have been by the methods pointed out by law, and that a return thereof has been made to the Ordinary, and parol evidence of the terms of the distribution is not admissible, unless it appear that there was no return, or some excuse shown why it was not presented.
    Gift. Presumption. Statute of limitations. Distribution. Evidence. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.
    James McKee and others, the heirs-at-law of Hockley C. McKee, brought ejectment against John G. McKee for parts of city lots numbers five hundred and twenty-three and five hundred and twenty-four, in Columbus, the declaration containing a count for mesne profits. The defendant pleaded the general issue.
    Upon the trial the plaintiffs submitted the following testimony :
    1st. Proof that the plaintiffs were heirs-at-law of Hockley C: McKee, deceaseds
    2d. Deed covering the premises in dispute from Samuel Boy-kin, executor, to Robert B. Murdock, dated January 5th, 1859.
    3d. Deed covering the same property from Robert B. Murdock to Hockley C. McKee, dated......
    4th. Plaintiffs introduced the defendant who testified that his father, Hockley C. McKee, desired to give to each of his children, as they married, a home; that he told defendant *to select a place, and defendant accordingly made tire bargain for the premises in dispute with Murdock; that his father placed him in possession of the place and gave it to him for a home; that he had had exclusive possession of the place from the day of the purchase without payment of rent; that in 1861, he made a note to his father for $. .;payable thirty days after date, to show in case of his father’s death, that he had received an advancement to that extent; that his father died in 1863. That defendant administered on his father’s estate.
    Counsel for defendant proposed to ask the witness the following questions: “Did you get any part of your father’s estate in the distribution? If not, was it not because you had received the house and lot?” Upon objection made the testimony was excluded, and the defendant excepted.
    
      The testimony being closed, the Court charged the jury, among other things, as follows:
    “The exclusive possession by a child of land belonging originally to his father, without payment of rent, for the period of seven years, will create conclusive presumption of a gift and convey title to the child, unless there is evidence of a loan or claim of dominion by the father acknowledged by the child, or of a disclaimer of title on the part of the child, but to raise the presumption of a gift in such a case, the father must have been in life for the space of seven years from the commencement of the possession of the child. If the father died within the seven years, the rule will not gpply.”
    To which charge the defendant excepted.
    The jury returned a verdict for the plaintiffs for the six-sevenths undivided interest in the premises in dispute and $1,650 00 mesne profits. Whereupon the defendant excepted, and now, assigns error upon each of the aforesaid grounds.
    R, J. Moses, for plaintiff in error.
    Peabody & Brannon, for defendants.
    
      
      Parent and Child — Gift—Presumption—Statute of Limitations. — • The statute guards the danger of abuse from these alleged parol gifts very scrupulously and carefully, by enacting that, the “exclusive possession by a child of lands belonging originally to the father, without payment of rent for the space of seven years, shall create conclusive presumption of a gift, and convey title to the child, unless there is evidence of a loan, or of a claim of dominion by a father, acknowledged by a child, or of a disclaimer of title on the part of the child.” Beall v. Clark, 71 Ga. 855, citing the’ principal case. See also, note to Mims v. Ross, 42 Ga. 122; Ency. Dig. Ga. Rep., vol. 6, p. 772.
      In Jones v. Clark, 59 Ga. 142, citing the principal case, it is held .that “if the son held the land seven years during the lifetime of the father, the son’s title was good against a judgment obtained, pending the possession of the son, though the son did not hold possession seven years after the judgment.” See Ency. Dig. Ga. Rep., vol. 6, p. 771.
    
    
      
      Distribution of Estate — Manner.—See note to Grinad v. State, 34 Ga. 270; Ency. Dig. Ga. Rep., vol. 5, p. 742.
    
   *McCay, Judge.

Assuming that this case is to be governed by section 2622 of the Revised Code, (though the original possession was taken four years before that provision was the law,) we think the Judge was right in his construction of the section. Its provision is, that “the exclusive possession by a child, of lands originally belonging to a father, without payment of rent for the space of seven years, shall create a conclusive presumption of a gift and convey title to the child, unless there is evidence of a loan, or a claim of dominion by the father, acknowledged by the child, or of a disclaimer of title on the part of the child.”

The whole idea of this law is based upon the conduct of the father — that he has for seven years allowed the son to keep his land without paying rent, and has claimed, for all that time, no-dominion over it. And the presumption of gift and conveyance of title is clearly made to depend upon the continuance for seven years of these things. If, during one of the years, rent was paid, or if for but once during the period the father claims and the child acknowledges dominion, the presumption does not obtain. How can this state of facts exist, unless the father be alive for the whole period?

The ground of the exclusion of the evidence excluded does not affirmatively appear. But it was objectionable for two rea■sons: 1st. The question assumed there had been a division, and was objectionable as a question for that reason. 2d. A “distribution” is presumed to have been made by the usual means, and a return of it to the Ordinary is presumed to exist. That is the highest evidence of its details. There was no excuse offered for not producing this, the highest evidence of the facts, connected with the division.

Judgment affirmed.  