Durham v. Holeman
| Decision Date | 30 June 1860 |
| Citation | 30 Ga. 619 |
| Parties | DURHAM. v. HOLEMAN. |
| Court | Georgia Supreme Court |
Complaint in Ejectment, in Sumter Superior Court. Tried before Judge Allen, at April Term, 1860.
This suit was brought by Durham, against Holeman to recover lot No. 221, in the sixteenth district of Sumter county. On the trial, the plaintiff introduced the grant from the State to himself, dated June 2d, 1843, and having shown the defendant to have been in possession at the commencement of the suit, closed his case.
The defendant was then sworn before the Court, and stated that there was a copy deed on record (the original he had never seen or had) purporting to have been made by plaintiff to one Josiah Bradley, and purporting to have been attested by one James G. Bird and one John R. Wells, J. P., and to have been executed in Wilkinson county, on the 1st day of November, 1829. Defendant stated further, that he had searched for said deed in the Clerk's office and by asking May (from whom defendant had a deed for half the let in dispute), and that May said the original deed had been lost or mislaid; also, had made diligent inquiries for Bradley, but could not find his whereabouts.
Defendant's counsel then proposed to read in evidence said copy deed from the record.
Plaintiff's counsel objected, on the ground that neither the existence nor the loss of the original had been proven.
The objection was overruled, and the copy deed read in evidence.
Defendant then read in evidence a Justice's Court ft. fa. in favor of one Sandford against James H. May, with the following entries thereon:
"Property sold for $200.00, and bought by Francis Mills.
The money claimed by an older execution. July 26th, 1845.
The sheriff's deed, made in accordance with the above sale, was then introduced, dated October 15th, 1850. Also, a deed from James H. Hay to defendant for the north half of the lot in dispute, dated July 13th, 1842.
Defendant then introduced as witnesses Isaiah Ansley, John Willingham, Joseph M. Livingston, Wingfield M. Livingston, John D. McCay, Green Robinson and George C. Robinson, who testified, in substance, that said John Willingham, as tenant of defendant, went on the lot in dispute in the fall of 1848, and lived thereon with his mother until the latter part of that year, or the first of 1849, when defendant himself went on the lot, and has lived there ever since, there being no interval between Willingham's and defendant's possession; that there was a shelter, or cabin, on the lot in 1848, and a small horse or cow lot, some land deadened (the witnesses variously estimate the quantity at from 15 to 50 acres), and a good fence around the horse lot, which embraced about one-quarter or half an acre; said improvements made by defendant or his said tenant. One or two of the witnesses state that there was also a well dug on the place in 1848, and several thousand rails split, and that defendant made a crop there in 1849.
Defendant here rested his case.
Plaintiff, in rebuttal, introduced an exemplification from Executive Department at Milledgeville giving the names of the Justices of the Peace elected and commissioned for the county of Wilkinson in the year 1829, and among which the name of John R. Wells does not appear. Plaintiff then introduced as witnesses A. W. Wheeler, Green M. Wheeler, B. M. Wheeler, A. M. Little, Moses Driver, Patrick Brady, Mrs. Driver and P. H. Wooten, who testified, in substance, that defendant did not go into possession of the lot in dispute until the latter part of 1849 or the first of 1850. and all of them, except one or two (who do not speak of Willingham), state that Willingham did not go on the lot until the fall of 1849; that no onewas on the place in 1848, although there was a shelter there and some deadening of land, and a small horse or cow lot not used; that the land was not cultivated in 1848, nor until Willingham went there, except a small corner next to Mrs. Driver\'s place cultivated by A. W. Wheeler in
1849. Several of the witnesses state that the horse or cow lot was there in 1847, and some of the land was deadened also that time, but no one was living on the place in 1847 or 1848 or cultivating it. Plaintiff also proved by Mary Till that Green Robinson lived ten months of the year 1849 in Houston county.
It appears from the record, that this suit was brought on the 14th day of February, 1856.
The evidence having closed, the Court charged the jury, and they returned a verdict for the defendant.
Plaintiff moved for a new trial on the following grounds, to wit:
1st. Because the verdict is against law and the weight of the evidence.
2d. Because the Court erred in admitting in evidence the copy deed purporting to have been made from plaintiff to Bradley.
3d. Because the Court, after giving in charge to the jury several written requests of plaintiff's counsel (which are set Out in the record, but omitted here), gave in charge the following requests of defendant's counsel, to which plaintiff excepts, to wit:
1st. That if they believe, from the evidence, that Durham, the plaintiff and drawer of the land, sold and made a deed to Bradley, then the plaintiff can not recover in this suit.
2d. That the certificate from the Executive Department of the State, certifying to the Justices of the Peace who were commissioned and qualified in the year 1829, in which the name of the Justice to the deed does not appear, is not absolutely conclusive evidence that no such person was Justice of the Peace in the State of Georgia, nor is it absolutely con-elusive evidence that said deed is a forgery; but it is only evidence tending to prove that fact, and may or may not prove it, as you may believe from all the evidence in the case on that point.
3d. That if the jury believe that the defendant commenced improving the lot of land sued for in 1847 or 1848, and continuously occupied the same for seven years, by cutting of timber, building houses, deadening land and enclosing portions thereof, and by cultivating the same, then the verdict must be for the defendant—the law being, that seven years peaceable and uninterrupted possession gives a statutory title to real estate in Georgia.
4th. That if the jury believe, from the evidence, that defendant, by himself or by Willingham, his tenant, held one-half acre of fenced land and deadened 30 or 40 acres of the land, built a house thereon, dug a well in 1848, and continued, without interruption, to thus occupy, and claimed said land continuously, uninterruptedly, adversely for seven years, then his title is good to the whole lot; if you believe the whole lot was sold to defendant at sheriff's sale in 1845, the said entry and sale being, in law, a good color of title.
5th. That if the jury believe the acts and use of the lot in question by the defendant were of such a character as to leave no. doubt in the mind of Durham, if he had passed that way, that it was the purpose of Holeman to keep him out of his land, and that he was an adverse claimant, then such use and acts, in law, constitute adverse possession, and if continued seven years, will ripen into a perfect title.
6th. That it is the duty of the jury to reconcile all the testimony and make each witness speak the truth, if possible; if that is not possible, all the witnesses being credible, then those who had the best opportunity of knowing are to be most relied on.
7th. That where there is an irreconcilable conflict in the evidence resulting in reasonable doubt upon the mind, then in this, like a criminal case, the defendant is entitled to the reasonable doubt, and the law will leave the parties where it found them.
The Court refused to grant a new trial, and plaintiff ex-excepted.
N. A. Smith, Lanier & Anderson, for plaintiff in error.
Hawkins & McCay, contra.
By the Court.—Lyon, J., delivering the opinion.
1. Before secondary evidence of the contents of a lost deed can be gone into, the existence and execution of such deed must be established by proof. This question was thoroughly investigated and fully settled by this Court in Young vs. Bige-low, decided at the March Term, 1860, of this Court at Atlanta. 1 Phil. Ev. 452; 1 Gr. Ev. sec. 558, and note. It was error, therefore, in the Court to permit a copy, from the record, of the deed purporting to be from the plaintiff to one Jo-siah Bradley, to be read to the jury as evidence, without proof of the existence and execution of the original.
2. The only evidence before the Court, that the plaintiff had sold and made a deed for the land to Bradley, was that of the copy deed before referred to, and as that deed was improperly admitted, and constituted no evidence of the fact— and it was error in the Court to charge the jury, that if they believed, from the evidence, that the plaintiff had sold and made a deed to Bradley, the plaintiff could not recover.
3. The certificate from the Executive Department, showing that there was no such Justice of the Peace in the county of Wilkinson during the year 1829, as John R. Wells, who appears to be a witness to the deed on record, purporting to be from the plaintiff to Josiah Bradley, dated the first day of November, 1829, and whose name...
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