Burkhalter v. Edwards

• Decision Date: 31 January 1855
• Docket Number: No. 64.,64.
• Parties: John Burkhalter, plaintiff in error. vs. William H. Edwards, defendant.
• Court: Georgia Supreme Court

16 Ga. 593

John Burkhalter, plaintiff in error. vs. William H. Edwards, defendant.

No. 64.

Supreme Court of the State of Georgia

JANUARY TERM, 1855.

Ejectment, in Tatnall Superior Court. Tried before Judge Holt, October Term, 1854.

The facts of this case are as follows: In 1816, a grant was issued by the State to William Wilder, for seven thousand acres of land in the County of Tatnall. In 1823, Wilder conveyed the land to Ebenezer Jenks, and in 1833, Jenks conveyed to William H. Edwards, the defendant in error. In 1838, Edwards being engaged, at the time, in litigation, con-cerning the purchase-money of the land, instituted proceedings to have a portion of the tract run up as vacant land.

At the same time, one John H. Smith, was proceeding to secure the same portion in the same manner. Smith told Edwards that he (Smith) had the oldest survey; upon which Edwards offered, if Smith would pay him the expenses incurred by him in the matter, to withdraw his application, which Smith did; and obtained a grant for the land and went into possession. In 1845, Edwards, controlling a fi. fa. against Smith, pointed out this land as his, and caused it to be levied on and sold by the Sheriff, he present at the sale and making no objection.

Benjamin Brewton and John A. Mattox became the purchasers, and in 1847 Mattox conveyed his interest to Brewton; Edwards being a witness to the deed. In 1850, Brewton conveyed to Burkhalter, the plaintiff in error, and the land continued, from that time until now, in the possession of Burkhalter.

In 1852, Edwards brought his action of ejectment against Burkhalter for the land, founding his claim upon the original grant to Wilder, and the chain of title to himself, which was proved to cover the land.

Upon the trial, the following points arose: When the grant to Smith was offered in evidence, by defendant, being objected to, the Court refused to admit it for any other purpose but to show color of title, holding that land cannot be twice granted, and that, as a grant, it was of no force, to which defendant excepted.

The defendant offered the Sheriff's deed, without the fi. fa. on which it was founded; and proved by the former Sheriff who had sold the land, and by the present Deputy Sheriff, that they knew nothing of the fi. fa.; the Deputy Sheriff stating that he had but one fi. fa. of the Central Bank against John H. Smith, and on that there was no entry whatever.

Col. W. B. Gaulden, of Counsel for defendant, was offered to prove that he had applied to the Deputy Sheriff for the fi. fa. and was told by him that there was no such fi. fa. in office. This evidence the Court rejected, on the ground that defendantshould not contradict his own witness; and decided that the loss of the fi. fa. was not satisfactorily shown, and rejected the Sheriff\'s deed, and defendant excepted.

Defendant then offered the deed as color of title, under the Document Act, and at the same time offered to prove that Edwards was present at the sale, and made no objection to it, and no mention of his own title, and that he had pointed out the land to the Sheriff, to be levied on as Smith's property. All which was rejected by the Court, except the fact of the sale; and to this decision defendant excepts.

Defendant also excepted, because the Court refused to charge that if, at the time Edwards bought the land, it was in the possession of another under adverse claim, that the purchase was void under the Statute of Henry VIIIth against buying pretended titles; and also, that Court did charge that the act of cutting timber on the land did not constitute adverse possession, and that land could not be twice granted by the State.

Upon the above stated points, error is assigned.

Gaulden, for plaintiff in error.

D'Lyon & Schley, for defendant.

By the Court.—Lumpkin, J., delivering the opinion.

It is not advisable, we apprehend, to enter minutely into the consideration of all the points, in detail, which are spread out upon this record. It would involve unnecessary repetition. Having expressed the opinion of the Court, upon the main questions which must control the present and future disposition to be made of this case, we shall have discharged our duty.

Was the Court right in rejecting the testimony of Wm. B. Gaulden, Esquire, the Attorney of the defendant, and who tendered himself as a witness, to prove that he applied to the Deputy Sheriff for the fi. fa. under which the land in dispute was sold? The evidence was repelled by the Court, on theground that the defendant could not contradict his own witness. It is not apparent, from the record, how the testimony of Col. Gaulden would gainsay anything stated by the Deputy Sheriff. It is alleged in the argument, however, and acquiesced in, seemingly, by the other side, that the interrogatory had been previously propoundered to the Deputy Sheriff, whether Col. Gaulden had not applied to him for this paper; and that he had answered in the negative.

Admitting this to be so, was it not complete to establish, by Counsel, that such was the fact? and would this be any disturbance of the rule which will not allow a party to discredit his own witness? Whatever diversity of opinion may have existed upon this question, we consider it as settled, both upon reason and authority, in the affirmative. A party is not to be sacrificed by his witness; and he ought not to be entrapped by the arts of a designing man, perhaps in the interest of his adversary. He ought, therefore, to be permitted to relieve himself from the effect of testimony which has take him by surprise, not by showing that the witness, from his general character for truth, is not entitled to credit, but by showing that the fact is different. (Wright vs. Beckett, 1 M. & Rob. 414, 416, per Lord Denman; 1 Phil. & Am. on Ev. 904, 907; Rice vs. New Eng. Marine Ins. Co. 4 Pick. 439; Rex vs. Oldroyd, Rus. & Ry. 88, 90, per Lord Ellenborough, and Mansfield, C. J.; Brown vs. Bellows, 4 Pick. 179; The State vs. Norris, 1 Hayw. 437, 438.)

Ought the Sheriff's deed to the land, unaccompanied by the execution under which the sale was effected, to have been admitted as color of title? We think so, most clearly. Conceding that the Sheriff sold without authority, and this is the most that can be presumed from the absence of the fi. fa., and that consequently, his conveyance was void; still, if the purchaser took and held possession under the deed, it was good as color of title. The presiding Judge recognized this rule, in relation to the grant to Wm. H. Smith; for while he held that that grant was void, the same land having been previously granted, by the State, to Wm. Wilder; still, he allowed it togo to the Jury as color of title. And this error, in rejecting the Sheriff\'s deed, as color of title, was fundamental; for without this deed and the possession under it, the defendant\'s statutory or possessory title was confessedly incomplete. With it, the Jury were authorized to find that the bar to the action was conclusive.

Another material exception in this case is, the repudiation, by the Court, of all the acts and declarations of Wm. H. Edwards, which the defendant proposed to set up, as amounting to an estoppel to his assertion of title to the premises in controversy, to-wit: the pointing out of the land to be levied on as the property of Smith, being actually present at the sale and interposing no claim or objection, and his subsequent attestation of a deed from Mattox to Brewton, to the same land, &c. All the proof, to this point, should have been received, for it demonstrates that Mr. Edwards not merely tacitly acquiesced in Smith's title, but encouraged others to buy under it. Mr. Justice Lawrence, in 6 Den. & East. 556, stated that Lord Mansfield had held, that similar circumstances amounted to a good estoppel, at Law. And if they would so operate in England, much more would they, in this State, where, by the Act of 1820 and other legislation, the Law powers of the Courts have been so much enlarged.

It is proper to notice the character and effect of the adverse possession relied on in this case, to protect the defendant against a recovery.

In 1816, a tract of land containing $7,000 acres, was granted, by the State, to William Wilder. In 1823, Wilder conveyed to Ebenezer Jenks; and in 1833, Jenks sold to Edwards, the plaintiff in ejectment. In 1838, Mr. Edwards being involved in litigation with Jenks or his real or pretended assignee, as to the payment of the purchase-money which he had agreed to give for the land, probably considered it his interest, at that time, to make it appear that his vendor's title was defective. He took initiatory steps to run up the land in dispute as vacant, but waived his claim in favor of Wm. A. Smith—the latter refunding to him the money which he had expended in pro-curing a warrant to issue, and causing a survey to be executed. With the knowledge of Edwards,...