Ejector v. Dem

• Decision Date: 30 June 1869
• Citation: 39 Ga. 328
• Court: Georgia Supreme Court
• Parties: ROE. casual ejector, and JOSEPH THOMAS, tenant, plaintiff in error. v. DOE ex dem., JOHN MALCOM, et al., defendant in error.

39 Ga. 328

ROE. casual ejector, and JOSEPH THOMAS, tenant, plaintiff in error. v. DOE ex dem., JOHN MALCOM, et al., defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

(BROWN, C. J., dissents as to the last head note.)

(McCAY, J., did not preside in this cause.)

Ejectment. Motion for new trial. Decided by Judge James M. Clark. Sumter Superior Court. April Term, 1869. *This was ejectment upon the several demises of John Malcom, Hillman Hawks, et al., against John Thomas, tenant in possession, for land lot No. 43, in the 17th district of originally Lee, now Sumter county.

The plaintiff introduced at the trial as his muniment of title to said lot, the following evidence: A grant from the State to Charles Weeks, of Adam's District, Morgan county, dated February 3d, 1832; a deed from John Kinney, as sheriff of Sumter county, to Dennis Hill, dated February 7th, 1832, made in pursuance of a sale by him, as such sheriff, on that day, under a fi. fa. in the following words and figures:

"Georgia, Morgan County.

"You are hereby required that of the goods and chattels of Charles Weeks, you make the sum of twenty-five dollars and twenty-fivecents, which was adjudged to James Clark, as his debt, November the 16th, 1820, as his debt, with interest from the 14th March, 1819, $1 25 costs, cost 31¼ cents for this execution; make the above sum of money: hereof fail not. Given under my hand this 14th Feb\'y. 1821.

Fred'k Helenbeck, J. P."

"No property found in this District to satisfy this execution. May 2d, 1823. Thomas Bloodworth, Constable.

"Georgia, Newton County.

"To any lawful officer to execute. January 21st, 1830.

Richard Kennon, J. P.

"No property found to levy this fi. fa. on, January 22, 1830.

John Pucket, Constable.

"October 28th, 1831, this is to any lawful officer to execute and return. John A. Burk, J. P.

"Georgia, Lee County.

"October the 29th, 1831. Levied the within fi. fa. on lot No. 43, in the 17th district of the county, the property pointed out by the plaintiff. Levi Spencer, Constable.

"The above levy sold for twenty-six dollars, deducting the plot and grants and costs. Rec'd of John Kenney, Sheriff, eleven dollars 12½cts. of the within fi. fa. Feb'y. 7th, 1832. Dennis Hill."

One of the witnesses to this deed, was one Winn, who signed as Justice of the Inferior Court.

*This deed and fi. fa. were objected to as evidence, because of certain alterations and erasures apparent on the deed, and because the fi. fa. was not directed to any officer, did not show in what district of Morgan county the judgment on which the fi. fa. was founded, was entered, nor did it appear to have been backed by a Justice of the peace of Lee county before it was levied on said lot, because the fi. fa. and entries on it did not authorize the constable to make the levy, or the sheriff to make the sale so as to pass title. All these objections were overruled.

Plaintiff\'s attorney traced title down from Hill to Malcom and Hawks. They then introduced the defendant, and showed by him the locus in quo; his possession at the beginning of the suit, 10th of March, 1860; that one hundred acres of said lot were cleared and in cultivation by him; that these acres were worth three dollars per acre for rent for each of the three years last past, and that the improvements of the place by him was worth fifty cents per acre for the same time. Whether he meant fifty dollars or fifty dollars per annum, does not appear. While he was on the stand he proposed to testify for himself, on cross examination, that these improvements which he had made, rendered the lot more valuable by five hundred dollars, than if the improvements had not been made. Upon objection taken, the Court rejected this testimony, saying that he might prove and set-off the actual value of the improvements, but no more.

Here the plaintiff closed. The defendants read in evidence a transfer of said fi. fa., dated 10th of December, 1826, by James Clark to James Blassingame. This began: "This day received of James Blassingame, thirty dollars in full satisfaction for a judgment, (describing said judgment) and ended, "and I do hereby assign over and transfer the said judgment to James Blassingame, with leave to use and control the execution thereon for his individual benefit, not holding myself responsible for the same in any event." Then another transfer as follows: "Dennis Hill has the control of the within for me, this 30th Jan'y, 1832.

James Blassingame."

*When this evidence was concluded, defendant's attorney moved to rule out the said fi. fa. and deed made under it, upon the ground that the fi. fa. was satisfied. The Court overruled the motion.

Next they read a deed from Green M. Wheeler, sheriff, to James White, by sale under a Justice Court fi. fa. against said Weeks, dated the 7th of February, 1843, (the production of the fi. fa. was waived) a deed from White to C. J. Martin and W. J. Patterson, dated 12th October, 1858, and a deed from Martin and Patterson, to said Thomas, dated the 13th of November, 1860; a deed made by Thomas Merrill, as attorney in fact of Charles Weeks, on the 17th of December, 1838, to Solomon Shelgrove, Jr., under a power of attorney, to Merrill, dated 17th July, 1834; a deed from Shelgrove's administrator to said Thomas, dated 6th of December, 1859.

They then read the Act of the General Assembly organizing Sumter county, which was assented to on the 26th of December, 1831. In it certain persons were named as commissioners, "with authority to superintend the election of Justices of the Inferior Court, and other county officers, and to appoint the times and place of holding said elections, and select the place of holding the Superior and Inferior Courts, and to do and perform all other acts preparatory to the organization of said county, " and with authority to purchase, lay off into lots, and resell a lot of land, and use the proceeds for building a courthouse and jail. They read also, a certificate of the Secretary of the Executive Department, showing who had been Justices of the Inferior Court of Sumter county. Said Winn's name was not in the list. They also showed that said Kinney, sheriff, was commissioned on the 12th of January, 1832, that it was in July, 1832, before the said commissioners bought and sold a lot for said purpose. This was shown by way of...