Cody v. Quar-terman

• Decision Date: 31 January 1853
• Docket Number: No. 63.,63.
• Citation: 12 Ga. 386
• Parties: Lewis Cody, plaintiff in error. vs. W. C. W. Quar-terman, executor of Michael T. Dawsey, defendant.
• Court: Georgia Supreme Court

12 Ga. 386

Lewis Cody, plaintiff in error. vs. W. C. W. Quar-terman, executor of Michael T. Dawsey, defendant.

No. 63.

Supreme Court of the State of Georgia

JANUARY TERM, 1853.

Statutory action for recovery of lands and profits, in Chatham Superior Court. May Term, 1852, and motion for new trial. Decided by Judge Henry R. Jackson.

This was an action under the Statute, for the recovery of lands, and the profits thereof, brought by William E. W. Quarterman, executor of W. T. Dawsey, the defendant in error, against James Cody, plaintiff in error. This cause was tried upon the appeal at the May Term, 1852, when the plaintiff in the Court below, offered in evidence the following testimony:

Samuel B. Sweat, a witness sworn on behalf of plaintiff, testified that the plat made by him and shown to him in Court, dated on or about the eighteenth day of December, in the year eighteen hundred and forty-four, did not exactly identify the premises as described in the declaration, but sufficiently so to show identity, and that he made the plat. On cross-examination, he testified that Samuel Bandy was on the premises in dispute prior to June, 1841, and that the plat shown him by defen-dant\'s counsel, made pursuant to deed hereinafter stated, dated on or about the nineteenth February, 1835, was substantially for the same premises in dispute in the other plat described. Both plats were put in testimony. Charles Chapman, sworn on the same side, testified that-McGee got permission from Dawsey to build a house on the premises; that he built and died there, and that after his death-Moira married his (McGee\'s) widow, and so got possession. Witness did not know how Bandy got there, and on cross-examination stated that Bandy lived there ten or fifteen years ago.

George Moore, sworn on same side, testified that he was living with Dawsey when McGee called at Dawsey's house and leased the land for five years. Heard the whole conversation, Dawsey refused to sell, but agreed to lease the land to him— that McGee built on the land as tenant of Dawsey. Dawsey went with McGee and showed him where to build. (Defendant's counsel here asked witness how he knew that Dawsey showed McGee where to build. Witness replied that Dawsey told him so—to which testimony defendant's counsel objected.) Witness further testified that McGee died, leaving his widow in possession—that the widow married Moira, who thus got possession—and Moira sold to Bandy the unexpired term. There was no written lease. On cross-examination, stated he did not know of his own knowledge how Bandy got into possession.

A. Holliday, sworn on same side, testified that he went with McGee to Dawsey to get him to let McGee have the land, as McGee was a very poor man. Dawsey refused to sell, but verbally leased the land to McGee, McGee agreeing to build on the land and give up the building at the end of five years—that McGee did build, and moved into the house and died, leaving his widow in possession. Moira married the widow some eight months after McGee's death, and afterwards sold to Bandy the unexpired term. The lease to McGee was verbal, and some thirteen or fourteen years before the commencement of this suit. Bandv came to witness and asked about buying from Moira, and witness asked him why he did not buy from Dawsey. Bandy replied that Dawsey would not sell. Premises were worthabout seventy-five dollars rent per year. On cross-examination witness stated (after several questions put to him,) that Bandy told him that he knew of Moira\'s holding under Dawsey, and that Bandy bought lease of premises from Moira, who held under Dawsey, of which Bandy was aware, and that this might have been thirteen or fourteen years ago. Plaintiff\'s counsel then introduced (under notice to produce,) the following deed:

State of Georgia, Chatham County.

This Indenture, made the thirtieth day of December, in the year of our Lord one thousand eight hundred and forty-two, between Samuel Bandy of the State and County aforesaid, of the first part, and Andrew McIntyre, of the State and County aforesaid, of the second part, witnesseth that the said Samuel Bandy for and in consideration of the sum of three hundred and thirty-eight dollars, to him in hand paid by the said Andrew McIntyre, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged; hath granted, bargained, sold, aliened, remised, released and confirmed, and by these presents doth grant, bargain, sell, alien, remise, release and confirm unto the said Andrew McIntyre, and to his heirs and assigns, all those two tracts of land—one containing five hundred acres, situate, lying and being in the County of Chatham and State aforesaid, bounded north by lands of J. B. Read and south by lands of the estate of Mongin's, east by the Ogechee River, and west by unknown lands and Dr. Read's land. The other tract containing twenty-five acres, situate, lying and being in the County of Chatham and State of Georgia, bounded north by Rascoe's land, south by Rose's land, east by Rascoe's land, and west by McLeod's land, on the Darien road, apposite the twelve-mile post in Ogechee District, together with all and singular the houses, out-houses, edifices, buildings, stables, yards, gardens, liberties, privileges, easements, commodities, emoluments, hereditaments, rights, members, and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits, and all the estate, right, title, interest, property orpossession, claim and demand whatsoever, in law or in equity, of the said Samuel Bandy, of, in or to the same, or any part or parcel thereof, with the appurtenances. To have and to hold the said two tracts of land, and all and singular other the premises hereby granted, bargained, sold, aliened and confirmed, with the hereditaments and appurtenances, unto the said Andrew McIntyre, his heirs and assigns, to the only use and behoof of the said Andrew McIntyre, his heirs and assigns forever, and to and for no other use, intent or purpose whatsoever. And lastly, the said Samuel Bandy and his heirs, the said two tracts of land and premises unto the said Andrew McIntyre, his heirs and assigns, against him the said Samuel Bandy, his heirs, and against all and every other person or persons whatever, shall and will warrant and forever defend by these presents. In witness whereof, the said Samuel Bandy hath hereunto set his hand and seal the day and year first above written.

SAMUEL BANDY, [L. S.]

Sealed and delivered in presence of

John N. Gow, Isaac Russell, J. P. j

Georgia, Chatham County—Clerk's Office, Superior Court. Recorded in Book A. A. A., folios 497 and 498, this 17th May, 1843.

EDWARD G. WILSON, Dep. Clerk Sup. C. C. C.

Plaintiff's counsel also introduced John Cooper, who testified that Bandy sold to McIntyre, and that John Murchison, as executor of McIntyre, put the defendant, Cody, into possession, and that Murchison, as executor of McIntyre, was receiving $100 per annum rent. It was admitted on both sides that plaintiff, Quarterman, and John Murchison, were properly qualified executors of their respective testators—and it was further admitted that plaintiff, Quarterman, claimed but the 26¹/₂ acres delineated in the first named plat, and that defendant, Cody, claimed only the 25 acres mentioned in the second plat above named.

Plaintiff's counsel having closed, defendant's counsel introduced Levi S. D'Lyon, Esquire, who testified that Bandy claim-ed the land ten or fifteen years ago, and also as far back as 1835; that in 1840, Bandy was living there. The following record was then introduced in evidence by defendant\'s counsel, and shown to the witness:

Georgia, Chatham County.

To the Honorable the Judge of the Superior Court of Chatham County:

The petition of John Doe, sheweth that Richard Roe, of said County, hath endamaged your petitioner in this, to wit: For that whereas Samuel Bandy, on the twentieth day of February, eighteen hundred and thirty-five, in the County aforesaid, had demised to your petitioner all that lot and tract of land situate, lying and being in the County of Chatham and State aforesaid, containing twenty-five acres of land, more or less, lying on the Ogechee Road, opposite to James Rascoe, bounded on the westward by to the north by

James Rascoe's land, and to the south by lands of Robert Statham, with the appurtenances, unto your petitioner and assigns, from the said twentieth day of February, in the year aforesaid, until the full end and term of seven years next ensuing, and fully to be complete and ended. By virtue of which said demise, your petitioner entered into the said lot, tract or parcel of land, containing as aforesaid twenty-five acres, more or less, lying on the Ogeechee Road, opposite to James Rascoe's, bounded westwardly on the north by James Rascoe's land, and on the south by lands of Robert Statham, with the appurtenances, and was thereof possessed, and your petitioner being so possessed thereof, the said Richard Roe afterwards, to wit, on the twenty-first day of February, in the year aforesaid, with force and arms, entered into and upon the said lot, tract or parcel of land in the County aforesaid, and described as aforesaid, which the said Samuel Bandy had demised to your petitioner in manner aforesaid, for the term aforesaid, which is not yet expired, and ejected your petitioner therefrom, and other wrongs to your petitioner then and there did, against the peace of the said State, and to the damage of your petition-er one thousand dollars. Wherefore your petitioner prays process may issue requiring the said Richard Roe to appear and answer in the premises.

WILLIAM H. STILES, for Petitioner.

Mr. Michael Dawsey:

Sir—I am informed that you are in possession of, or claim title to, the premises in this declaration of ejectment mentioned, or to some part thereof, and I being sued in this...