Bedgood v. Mclane

• Citation: 21 S.E. 529,94 Ga. 283
• Parties: BEDGOOD et al. v. McLANE.
• Decision Date: 14 August 1894
• Court: Supreme Court of Georgia

21 S.E. 529

94 Ga. 283

BEDGOOD et al.

v.McLANE.

Supreme Court of Georgia.

Aug. 14, 1894.

Domicile of Minor—Guardian—Sale for Taxes —Presumptions as to Validity.

1. Although a minor of very tender age may, at the time of his father's death, be temporarily residing with another person in a county other than that in which the father was domiciled, and in which he died, and may continue to so reside after the father's death, the ordinary of the county of the deceased father's domicile had jurisdiction, upon the application of the person with whom the minor was thus residing, to appoint him guardian of the minor, there being nothing to show that the minor's domicile had, during the father's lifetime, become different from that of the father by reason of a relinquishment by the latter of his parental authority to the other person, and the applicant for the guardianship, by applying to the ordinary of the county in which the father died, recognizing and conceding that no change in the minor's domicile had taken place.

2. Where a lot of wild land was sold for taxes by virtue of an execution issued by the comptroller general under the provisions of the act of February 28, 1874 (Acts 1874, p. 105), the presumption, in the absence of sufficient evidence to the contrary, is that the comptroller general complied with his duty as to advertising, as required by the sixth section of that act, as amended by the act of March 2, 1875 (Acts 1875, p. 119); and this presumption is not overcome by exhibiting three copies of a newspaper dated, respectively, in three successive weeks, and published at the capital of the state, in each of which appears a proper advertisement that the lot in question was in default for taxes, without also exhibiting other copies of the newspaper printed during the weeks immediately before and immediately after the three weeks mentioned, and not containing such advertisement, or else showing that no such copies were issued. The mere fact that the files of the newspaper, kept in the office in which it was printed, contained no copies of given dates, would not, of itself, be sufficient evidence that no copies of the paper were in fact printed and issued on those dates.

3. Irrespective of the various questions raised in the motion for a new trial, the verdict, for the reasons indicated in the foregoingnotes, was wrong on the substantial merits of the case, and the court erred in refusing to giant a new trial.

(Syllabus by the Court.)

Error from superior court, Dooly county; W. H. Fish, Judge.

Action by H. A. McLane against Bedgood & Royal. Plaintiff had a verdict, and, from a judgment refusing a new trial, defendants bring error. Reversed.

Brisbee & Crum, Wm. Brunson, and J. H. Martin, for plaintiffs in error.

Geo. W. Wooten, J. W. Haygood, and Gustin, Guerry & Hall, for defendant in error.

LUMPKIN, J. It appears that S. J. McLane, under a regular chain of title from the state down to himself, was the owner of a lot of wild land in Dooly county, on October 23, 1870. He died, while seised of this lot, and Hugh McLane, who was his son and only heir at law, became of age in 1889 or 1890. In 1877 the comptroller general, under the provisions of the act of February 28, 1874 (Acts 1874, p. 105), as amended by the act of March 2, 1875 (Acts 1875, p. 119), issued an execution against this particular lot for its taxes for the years 1874, 1875, and 1876. The land was levied upon by the sheriff, and, after due advertisement, was legally sold in 1878 to one Clements, under whom Bedgood & Royal now hold. Hugh McLane brought the present action against them to restrain them from trespassing upon the lot, for the recovery of the value of timber which they had cut and removed from the same, and for the cancellation of their paper title to the lot. There was a verdict for the plaintiff, and the defendants assigned error upon the overruling of their motion for a new trial.

1. The act of 1874, above mentioned, made it the duty of the comptroller general, upon receipt of the several digests of the receivers of tax returns, to make out a complete list of all the unimproved or wild lands in this state not given in for taxes, and, after completing the list, to make advertisement of such lands for 30 days in one newspaper published at the capital of the state, and in such advertisement require the owners of said...