Doe v. Roe

• Decision Date: 31 March 1859
• Citation: 27 Ga. 555
• Parties: John Doe, ex dem., Jefferson Johnson and Wife, plaintiff in error. vs. Richard Roe, cas. ejector, and Augustus R. Wright and John H. Walker, tenants in possession, defendants in error.
• Court: Georgia Supreme Court

27 Ga. 555

John Doe, ex dem., Jefferson Johnson and Wife, plaintiff in error. vs. Richard Roe, cas. ejector, and Augustus R. Wright and John H. Walker, tenants in possession, defendants in error.

Supreme Court of the State of Georgia

MARCH TERM, 1859.

Ejectment, from Cass county. Tried before Judge TRIPPE, at September Term, 1858.

This was an action of ejectment brought by John Doe, upon the demise of Jefferson Johnson and Wife, against Richard Roe, casual ejector, and Augustus R. Wright and John H. Walker, tenants in possession, for the recovery of lot of land No. one hundred and twenty-four, (124,) in the fifth district and third section of originally Cherokee, now Cass county.

This lot of land was drawn by Harriett Taff, (now Mrs. Johnson,) a minor, and to whom the grant from the State duly issued, dated 28th January, 1833.

Afterwards, in 1834, upon the information of James Kirkpatrick that said drawing was fraudulent, scire facias was issued and the Sheriff returned that he "served defendant, Harriett Taff, by serving her guardian, John W. Taff, with a copy" thereof.

Upon the trial, there was a verdict by the petit.jury, that the return and drawing of said lot was not fraudulent. The informer appealed, and the verdict upon the appeal trial was, that the return was fraudulent. Upon this verdict judgment was entered adjudging the grant issued to said Harriett to be void, and that the same be cancelled, and that said lot of land be partitioned—one-half to the State and the other half to the informer.

Afterwards, by consent of the informer, the Court ordered the land to be sold by the Sheriff of Cass county. Upon the sale thereof, William Harris became the purchaser, and Wright and Walker, the tenants in possession, adduced a regular chain of title from Harris down to themselves.

Harriett Taff intermarried with Jefferson Johnson, and they bring this action for the recovery of this land, drawn as aforesaid by Mrs. Johnson.

The case being called for trial, counsel for defendants moved to enter on the minutes of the Court the following order, viz.:

"JAMES KIRKPATRICK, vs.John W. TAFF, guardian, ad litem, of Harriett Taff.

Scire Facias, in Cass Superior Court.

It appearing to the Court that the entry of "John W. Taff, appointed guardian, pendente lite, " was made by the presiding Judge at the time—March Term, 1834—on the bench docket, in the above stated case, and it further appearing that a similar entry was made on the scire facias—that said entry and order was not placed upon the minutes of said Court, at that Term by the Clerk of said Court, it is on motion, ordered by the Court that said entry be now entered on the minutes as of that time, by the Clerk, nunc pro tunc."

Counsel for plaintiffs objected to this order, the objection was overruled, and the order granted, and counsel for plaintiffs excepted.

Plaintiffs then submitted their proof. Offered and read in evidence the grant from the State to Harriett Taff, orphan of W. B. Taff, for the lot in dispute, dated 28th January, 1833; proved that defendants were in possession of the premises; that Jefferson Johnson and Harriett Taff intermarried on the 7th August, 1845.

Defendants proved that they had been in possession of the lot of land more than seven years before the commencement of this suit.

Defendants further offered in evidence, the records and proceedings in the case of James Kirkpatrick, informer, against Harriett Taff, in which there was the verdict and judgment, finding and condemning the return and drawing of said lot fraudulent.

Plaintiffs, in reply, proved that Harriett Taff was the daughter of William B. Taff, of Houston county, Georgia; that William B. Taff resided in Houston county in 1826 or 1827, and continued there until his death in 1832; that Harriett was born in the year 1829 or 1830; that she was raised and lived in Houston county until her marriage with Johnson.

Plaintiff then proposed to prove:

1st. That John W. Taff, upon whom the scire facias purported to have been served, was never served with the same, and had no notice thereof.

2d. That said John W. Taff never accepted the appointment of guardian, ad litem; that he was not at Court when the order appointing was made; had no notice of it, and was never at Cass Court, and never appeared by attorney or otherwise, to defend said scire facias, and that the same proceeded to final judgment by default.

3d. That the entry of service on said scire facias was a forgery; and that the person by whom said service purports to have been made, to wit: "C. F. Hemmingway, D. Sheriff, " was not a Deputy Sheriff.

4th. That the guardian, ad litem, was appointed at the instance of James Kirkpatrick, the informer, and that he induced the Court to make the appointment of a stranger who was not present, by stating that John W. Taff was the guardian in chief of Harriett Taff, and that this statement was false.

5th. That Harriett Taff was born in Houston county, and was never out of the State prior to her marriage in 1845.

Counsel for defendants objected to the admission of any testimony in proof of these facts. The Court sustained the objection, and counsel for plaintiffs excepted.

The testimony being closed, counsel for plaintiffs moved to exclude from the consideration of the jury, as evidence, the records and proceedings in the scire facias, upon the grounds: 1st. Because, under the Act of 1830, authorizing that proceeding, no provision is made for an appeal from theverdict of the petit jury, and the verdict of the jury, upon the appeal and judgment thereon, in said scire facias, as appeared by said records, were void and of no force.

2d. Because, by the Act of 1830, the said Harriett should have been served with a copy of said scire facias, in person, or by leaving it at her most notorious place of abode; and because said Act provides that no return made by an orphan should be declared fraudulent until the legal guardian shall have been made a party to the scire facias, or other discreet person appointed.

The Court overruled this motion, and counsel for plaintiffs excepted.

Counsel for plaintiffs requested the Court to charge the jury as follows:

1st. That by the Act of 1830, in a proceeding by scire facias, to condemn fraudulent returns and draws, no appeal is allowed; and if an appeal be taken, the same is void, and the jury must find for the plaintiff.

2d. That by said Act, Harriett Taff, the drawer, and defendant in scire facias, should have been served personally, or by leaving a copy at her notorious place of abode, if she resided in the county; and if a minor, then her legal guardian should have been made a party, or some other discreet person appointed by the Court to defend for her.

3d. That a guardian could not be legally...