Brogan v. Savage

• Decision Date: 30 September 1858
• Citation: 37 Tenn. 689
• Parties: JOHN BROGAN v. PEGGY SAVAGE et al.
• Court: Tennessee Supreme Court

37 Tenn. 689

JOHN BROGAN

v.PEGGY SAVAGE et al.

Supreme Court of Tennessee.

September Term, 1858.

FROM UNION.

This action of ejectment is from the circuit court of Union county. At the June Term, 1858, the presiding Judge, Turley, being incompetent to try said cause, from having been of counsel in it, the attorneys, by agreement, selected F. M. Fulkerson, Esq., to preside at the trial of the same, under the provisions of the act of 1858, ch. 90. There was a verdict for the plaintiffs, and a judgment thereon, from which the defendant appealed in error.

Maynard and Malone, for the plaintiff in error; J. R. Cocke and Evans, for the defendants in error.

Caruthers, J., delivered the opinion of the court.

The defendants in error, being minors, brought this action of ejectment by their guardian Noel Seals, in the circuit court of Claiborne, for the recovery of two tracts of land described in the declaration. They succeeded for part of the land claimed. The verdict is, “or the plaintiffs as tenants in common, a title in fee simple to the fourteen acres in dispute, described in the second count in the declaration, lying in the Moore deed; also all the lands described in the deed from Samuel Moore to William Savage, mentioned in the second count in the declaration.” The famous act of 1852, ch. 152, provides that if the right of the plaintiff to only a part of the land claimed in the action is proved, “the verdict shall specify such part, describing the same so that possession can be delivered, and a writ of possession be issued.”

We gave a construction of this part of the statute, at the last term here, in case of Loard v. Phillips, reported in 4 Sneed, 566. We say, it requires, where the verdict is only for a part of the land, that “it must be described by metes and bounds, a reference to the lines, of other tracts, or natural or artificial objects;” and further, that “if the evidence is not sufficient to enable the jury to give such description, the cause ought to be delayed until, by proper surveys or additional proof, this can be done.” It is enough to say now, that we are not disposed to relax the rules, or change the construction of the act settled in that case. Additional reflection and reconsideration has only confirmed and strengthened the opinion we then entertained.

The statement of the verdict in the case under consideration, is enough to show that it is bad under that decision. This error would reverse the judgment. But the record presents some other questions, which it is important to decide, as the case will go back for another trial.

1. A copy of a deed from William Savage to Franklin Brogan, for fifteen acres of the land, was offered in evidence by the defendant, and the same was objected to by the plaintiff's counsel, “on the ground that the clerk's certificate did not show that the attesting witnesses to said deed proved they were acquainted with the bargainor.” The court sustained the objection, and excluded the deed. In this, there was no error. Peyton v. Peacock, 1 Humph. 135;Garrett v. Stockton, 7 Humph. 85. The wisdom of this requirement of the registration acts is palpable, and it it indispensable to prevent fraud and imposition. But it is positive law, and cannot be disregarded. The objection is fatal; the register had no authority to place the deed upon his books upon this probate, and, consequently, his certified copy could not be evidence.

The defendant then proposed to prove it, in common law form, by asking the witnesses if they had heard the maker acknowledge the original deed. This was refused, because the deed was not produced, but only the pretended copy, which was established alone by the unauthorized certificate, as above stated. This was also right.

But the case presents another question, of more general interest and novelty. The judge of the circuit was incompetent to try the case, as he had been of counsel in it, while at the bar, and the counsel agreed in writing, that F. M. Fulkerson, an attorney of that court, should preside on the trial. This is authorized by the act of 1858, ch. 90, which is in...