Field v. Boynton

• Decision Date: 31 March 1862
• Citation: 33 Ga. 239
• Parties: John D. Field, plaintiff in error. vs. William S. Boynton, administrator of David B. Squires, defendant in error.
• Court: Georgia Supreme Court

33 Ga. 239

John D. Field, plaintiff in error. vs. William S. Boynton, administrator of David B. Squires, defendant in error.

Supreme Court of the State of Georgia

MARCH TERM, 1862

Ejectment, in Lumpkin Superior Court. Tried before Judge Rice, at February Term, 1862.

This was an action for the recovery of lot Number 1028, in the 12th district of Lumpkin county. Plaintiff showed title in his intestate by a grant from the State, dated 11th of August, 1851, produced his letters of administration and proved possession by defendant at the time of action brought, 29th June, 1860. He also proved by one Ralston, that although defendant went into possession, together with witness, in 1846 or 1847, he made no claim of title to the lot until 1850, at which time witness abandoned his possession.

Plaintiff here closed, and defendant tendered in evidence an old mutilated book from the sheriff's office of Lumpkin county, purporting to be a memorandum of sheriff's sales, with the following entry on the first page:

William Wood's sales book for 1840 and 1841.

February sales, 1840.

343, 13, 1, North B. M. Smith.....................$5 00

On several succeeding pages appeared similar entries, part of the leaves being torn off so that the figures following the character $ could not be seen, and further on appears the following respecting the lot sued for:

November sales, 7th day, 1843.

1028, 12, 1, J. D. Field.

Defendants showed that the book had been in the sheriff\'s office in its mutilated state from 1850, that J. S. Chastain was sheriff in 1843, and that the entry last named was in his handwriting, and that Chastain was dead. The Court rejected this book as evidence on the objection of plaintiff, because it was no evidence of a sale by the sheriff, the mutilations were not accounted for, and because it was a mere private memoranda, and not an execution docket authorized by law.

To this ruling of the Court defendant excepted.

Defendant next proposed to read to the jury as evidence of the sale of the lot the payment of the purchase-money and as color of title in aid of defendant's possession, first proving the handwriting of Chastain, and that he was not sheriff in 1846, but had been in 1843, the following receipt:

Received of John D. Field four lot Number 1028, 12, 1, sold on November, 1843, this 10th October, 1846.

J. S. Chastain,

Former Sheriff Lumpkin County.

Plaintiff objected to the introduction of this receipt, on the grounds that it was not evidence of a sale by the sheriff, did not show a consideration or any process under which a sale was made, that it was not evidence of any bona fide color of title, that Chastain was not sheriff at the date of the receipt, and because it was not contemporaneous with the transaction and no part of the res gestœ. The objection was sustained and defendant excepted.

Defendants then tendered a deed made by Henry G. King, sheriff of Lumpkin county to defendant to said lot, dated 28th July, 1860, duly attested and recorded, and which recites that, " in obedience to a writ of fieri facias issued out of a Justice's Court of Lumpkin county at the suit of John Wills against Samuel King, Jeremiah Chastain, former sheriff of said county, did lately seize the lot of land hereinafter described as the property of Samuel King, " etc., proceeding to recite the usual other facts, and making the usual conveyance contained in a sheriff's deed. Defendant proved by J. Worley that he, witness, had been a Justice of the Peace inthe district of said county in which the land was situated, and where Samuel King lived, from 1835 to 1840, and that he had issued several fi. fas. from his Court in favor of John Wills against said King, and that he did not know where any of them were. John S. Early, present sheriff, testified that at the instance of defendant\'s counsel he had searched the sheriff\'s office for said fi. fa., and could not find it. Defendant then produced the certificate of James Rutherford and W. R. Crisson, Justices of the Peace of the district in which King had lived, stating...