Boatright v. Heirs Of Porter

• Decision Date: 31 January 1861
• Citation: 32 Ga. 130
• Parties: Boatright et al. vs. Heirs of Porter.
• Court: Georgia Supreme Court

32 Ga. 130

Boatright et al. vs. Heirs of Porter.

Supreme Court of the State of Georgia

JANUARY TERM, 1861.

Ejectment in Dougherty Superior Court.Tried before Judge Allen, at the December Term, 1860.

This was an action of ejectment, instituted on the 17th of May, 1850, in favor of John Doe, on the demises of John S. Porter, Henry J. Porter, Abraham McLaws, and his wife Sarah McLaws, heirs at law of John S. Porter, deceased; James Cartlege, Martin Fields, Benedict White, and Hamlin J. Cook, against Richard Roe, casual ejector, and John Boatright, and Matthew Whitfield, tenants in possession, to recover lot of land number 16, in the second district of originally Early, now Dougherty county.

On the trial of the case in the Court below, the following testimony was adduced, to-wit:

evidence for the plaintiffs.

The grant from the State of Georgia to Benedict White, for the land in dispute, dated the 29th of December, 1820.

A deed from Benedict White to Martin Fields, for the land in dispute, dated the 22d of May, 1824, and recorded the 28th of December, 1849.

A deed from Martin Fields to James Cartlege, for the land in dispute, dated the 16th of March, 1826, and recorded the 28th of December, 1849.

A deed from James Cartlege to John S. Porter, dated the 2d of April, 1830, and recorded the 28th of December, 1849, for the land in dispute.

The admissions of counsel for defendants, that the land sued for was situated in the county of Dougherty, and that the tenants sued, as such, were in possession at the time the process was served.

Here the plaintiff rested.

evidence for the defendants.

A copy deed, duly certified from the records of Early Superior Court, from Benedict White to Edwin Huff, dated 30thof December, 1820, and recorded in December, 1821, accompanied with an affidavit, accounting for the non-production of the original.

A deed from Edwin Huff to James Anderson, dated 24th of September, 1822, and recorded 21st of October, 1823.

Here the defendants closed.

evidence for the plaintiffs in rebuttal.

Benedict White testified: That he was duly released from liability in this case; that he resided in Columbia county before the war between the United States and Great Britain, and was a soldier in that war; that immediately after the peace, he settled in Baldwin county, and lived there from March until the second Christmas afterwards; that he drew the land in dispute whilst he lived in Baldwin county; that from Baldwin, he moved to Twiggs county, and resided there two years; that from Twiggs, he moved to Wilkinson, and lived there one year; that from Wilkinson, he moved back to Columbia, and while a citizen of Columbia, he got Arthur Foster to take out the grant for him; that Foster sent the grant to him, through the post office at Augusta, and when he took it out and started home, he met with Martin Fields, got into a drinking spree with him, and lost the land in a game of cards with Fields, and made him a deed; that, on the next day, he did not know that he had gambled off his laud, until Eldridge, one of the witnesses, told him of it, and he has recollected it ever since; that he never conveyed the land to Edwin Huff, and, if there was ever such a deed, it was a forgery; that he has testified in this case several times—once on the stand, and three times by answers to interrogatories; that he had never sworn that he did not know Huff; that he never swore that he never lived in Twiggs county a day in his life; that A. II.McLaws gave him a note for $300 for his good will, to prevent him from setting aside the deed to Fields, because based on a gaming consideration; that he gave the note to Mullin, to get the money, and had not seen it since; that he never swore that Mullin brought the note back to him, nor that he had delivered the note to McLaws'brother; that the note had never been paid to him; that witness once thought he would get something from the heirs of Porter, but that it had got so mixed up, that he had given up the idea; that he was ignorant and illiterate, and could neither write or read writing; that he had a conversation with Turpin on the cars, but not about this suit, or the land in dispute, but about land that he was entitled to as a soldier; that he did not know whether the conversation with Turpin was about the land he drew or not, he could not remember; that he did not know whether he told Turpin that he had been down to Albany to attend to a law-suit or not, he did not remember; that he did not know whether he told Turpin that he was interested in the suit or not, and that, if a recovery was had for the plaintiffs, he would get half; he did not remember; that what he said to Turpin was not said under oath.

A deed from Robert Hardy, former sheriff of Baker county, for the land in dispute, dated 4th of March, 1828.

A deed from James Anderson to John Hickman for the land in dispute, dated 13th of December, 1831, which was objected to by defendant's counsel, and objection overruled.

A deed from Hickman to Wells Thompson, dated 8th of October, 1833, and

A deed from Thompson, by John Hickman, his attorney in fact, to Alexander Dennard, both of which were objected to by counsel for defendant, and the objection overruled.

L. G. Sutton testified: That, in 1834, he knew John Hickman, who was then twenty-five or thirty years old, and his neighbors spoke of him as a contentious man; that rumors were afloat of his being engaged in land swindles in 1838; that he ran away shortly thereafter, and witness understood on account of difficulties about a land transaction; that lands, like the lot in dispute, could have been bought, in 1820, for $30 00, or $40 00 per lot.

Evidence For Defendant In Sur-rebuttal.

Needham W. Collier testified; That some five or six years ago, he saw a note signed by A. H. McLaws, payableto Benedict White, for $300 00, whenever the heirs of John S. Porter should recover the land in dispute, upon the interrogatories of the said Benedict White; that he first was of opinion that White had it, but now thinks it was not White; that the man who had it, and whose name witness docs not know, showed it to witness and others, on the 11th of February, 1853, and made inquiry about the status of the land, and the residence of McLaws; that witness called the attention of Pace, Hampton, and others to the circumstance, and took a memorandum of the note, and what it said, at the time.

Pace testified that Collier's testimony was true.

Col. David A. Vason and the Hon. Lott Warren both testified: That on his former examination as a witness, Benedict White swore that he never lived in Twiggs county; that they are certain of this, because they thought that plaintiffs might rely upon a sheriff's deed to Porter, resting on a sale under a fi.fa. from a Justice's Court of Twiggs county, and asked the witness the question, in order to ascertain if he ever lived in Twiggs county; that after White had testified on that trial, a motion was made to continue the case, to get the Justice's Courtfi. fa., and the motion was not resisted by the witnesses, on the ground that White never had resided in that (Twiggs) county.

William H. Turpin testified: That he had a conversation, at the request of Mr. Sullivan, with Benedict White, on the cars, in which he spoke of a law-suit in.Albany, about some land he drew as a soldier, and that they were trying to defraud him out of it; that he lived in Columbia county, and drew the land; that the lawyers were to be paid if the land was recovered, and if no recovery no pay; that T. C. Sullivan heard the conversation, and seemed pleased with White's statements; that he saw nothing in White to make him distrust him, and does not believe he would swear falsely, and would believe him on his oath.

Thomas C. Sullivan testified: That he had made diligent inquiry for Edwin Huff, and learned from his former neighbors, that he had been dead fifteen or sixteen years;that the facts testified to by Vason, and Warren, and by Turpin are true.

William Sanford testified: That he knew Edwin Huff in 1815, or 1820, or thereabouts, in Baldwin county, but does not recollect the year ho left Baldwin county, nor whither he removed; that his character was that of an honorable, correct man, whose integrity witness never heard impeached; that he was an overseer, of moderate means.

William R. Butts testified: That he knew Edwin Huff well; that he bore the character of an honest man; that he and William Parham were the attesting witnesses to the deed shown to witness, from Edwin Huff to James Anderson, dated 24th of September, 1822; that witness also knew Benjamin Talbert, Thomas Humphries and James C. Humphries, all of whom were men of good standing, and unblemished character; that Talbert and James C. Humphries are dead, and Thomas Humphries is still living; that he has no distinct recollection of Benedict White, although the name is familiar.

Thomas C. Humphries testified: That the deed shown him is a copy of one purporting to be by Benedict White to Edwin Huff, both of Baldwin county, dated 30th of December, 1820, and attested by witness and Benjamin Talbert, and James C. Humphries, J. P.; that witness has no recollection of the deed or its execution; he knew White, and Huff, and the witnesses; Huff was a man of good character, so was James C Humphries, and Benjamin Talbert, and if any one signature to the original of the copy-deed is genuine, the deed is not a forgery.

The depositions of Benedict White, taken on three different occasions in this case, and now offered to impeach said White:

In the first, he testified: That he drew the land in dispute whilst he lived in Baldwin county; that he has since resided in Columbia county, and moved from thence to Emanuel county; that he sold the lot to Martin Fields, long before he left Columbia, as the deed annexed to the interrogatories will show, and he never sold it to any one but Fields, as he, witness, is an honest man; that he sold the land to Fields, on...