Gardner v. Granniss

• Court: Georgia Supreme Court
• Writing for the Court: BLECKLEY
• Citation: Gardner v. Granniss, 57 Ga. 539 (Ga. 1876)
• Decision Date: 31 July 1876
• Parties: Burrell Gardner, trustee, et al., plaintiffs in error. v. E. C. Granniss, administrator, defendant in error.

57 Ga. 539

Burrell Gardner, trustee, et al., plaintiffs in error. v. E. C. Granniss, administrator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

[Jackson, Judge, having been of counsel, did not preside in this case.]

[COPYRIGHT MATERIAL OMITTED.]

[COPYRIGHT MATERIAL OMITTED.]

Ejectment. Practice in the Superior Court. Pleadings. Waiver. Parties. Practice in the Supreme Court. Evidence. Will. Ancient documents. Deeds. Registry. Notice. Prescription. Mesne profits. Statute of limitations. Charge of Court. Before Judge Clark. lee Superior Court. March Term, 1876.

In February, 1858, Granniss, as the administrator of Kennedy, brought ejectment against John Herron for lot of land one hundred and forty-four, in the thirteenth district of Lee county, and for mesne profits. Herron died in 1870. At the March term, 1871, of Lee superior court, an order was passed reciting his death; that James.Gardner, of Richmond county, was the real defendant and directing that he be served with a copy of the declaration and process twenty days before the next term of the court Service was accordingly perfected on September 1st, 1871. In October, 1872, service was again perfected on Gardner and on his wife. They appeared and pleaded the general issue and title by prescription.

The plaintiff showed a regular chain of title from the state to himself. One link consisted of a deed from Theodocius Cook, the original grantee, to John Fergerson, executed in presence of Sarah Cook and Smith Cook, dated April 19th, 1834, and recorded November 29th, 1837, upon the following probate:

*"Georgia—Monroe County:

"Personally came before me, Smith Cook, who being duly sworn, says that he saw Theodocius Cook sign the within deed for the purpose therein mentioned, and that Sarah Cook, by making her mark, subscribed as a witness to said deed, and that the said Smith Cook did also sign his name as a witness to the same. (Signed) Smith Cook.

"Sworn to and subscribed before me, this 19th April, 1834.

"J. Fergerson, J P."

The plaintiff also proved by two witnesses, the followingfacts: The land in controversy was a forest lot and vacant until purchased by Bartlett in 1853. He sold to Jordan in 1853 or 1854. The latter cleared from sixty to ninety acres and cultivated it until his death. After his decease Gardner went into possession, as his son-in-law, and has so remained until the present time. Herron was his overseer in 18.58, and at the time this suit was brought. He died in 1870. Worth from $1 00 to $2 00 per acre per annum as rent. In 1866 and 1867 was worth about $4 00 per acre rent. There are now about one hundred and twelve acres cleared. Worth $5 00 per acre to clear it. Improvements are worth about $300 00.

The defendants showed a regular chain of title from Jacob Cook, as administrator of Theodocius Cook, to themselves. The deed from the administrator was executed on July 6th, 1852, and recorded on the next day.

They also showed by Sarah Wilder, formerly Cook, that she never witnessed the deed from Theodocius Cook to Fergerson.

Plaintiff introduced the petition of defendant Herron, made at the April term, 1858, in which he stated that he expected to show that the deed from Theodocius Cook to John Fergerson was a forgery; that he would show by Sarah Cook, who purports to be one of the attesting witnesses, that she never signed the same. Therefore he prayed that plaintiff *be required to file said original deed in the clerk's office for the use of defendant, to be attached to interrogatories to be submitted to witnesses for the purposes aforesaid.

Also, the affidavit of Sarah Wilder, formerly Sarah Cook, made in support of such petition, to the effect that in the spring of the year 1834, Fergerson purchased of Theodocius Cook a lot of land in the tenth district of Early county, number three hundred and forty-four, and that she witnessed the deed to that lot; that Cook refused to sell the lot in controversy; that she never witnessed a deed to that lot, and that if any such instrument be produced, with her name thereon as a witness, it is a forgery.

Also, the depositions of Theodocius Cook, grand-son of the maker of the deed, proving the signature of Smith Cook, and that he died in Henry county in 1838 or 1839.

Also, an affidavit made by the defendant Herron, attacking the aforesaid deed as a forgery, and the proceedings had thereon, at the September term, 1869, resulting in a verdict sustaining the genuineness of the deed.

In order to lay the necessary foundation for the introduction of such deed as an ancient document, plaintiff introduced Mr. Sneed, an attorney at law, who testified that a short time before the institution of this suit, Kennedy, then in life, and his client, gave him the Fergerson deed, and the others read in evidence, as constituting the chain of title under which he claimed the lot in controversy; that these deeds have been in his possession and in that of his associate counsel, from then until now; that soon after the commencement of this suit the Fergerson deed was submitted to the court for inspection; that a short time after the deposition of Mrs. Wilder was returned, the first trial was had, and her evidence used thereon by the defendant.

William C. Gill testified, in substance, as follows: On the day Bartlett obtained title to this lot from Williams, he asked witness to go and attest the deed as a justice of the peace; witness then told Bartlett that there was another deed from thedrawer for the lot, and he replied that he knew all about *it; he was safe, as he got a warranty from Williams, who was a wealthy man; saw the Fergerson deed on record in 1851, and feels sure that the probate, as now on the deed, was recorded there, for it was something strange to him; saw Williams in Griffin in 1853. He complained of Bartlett\'s not paying him for the land. He stated that the Fergerson deed was a forgery, and that he had told Bartlett all about it.

David A. Vason and W. A. Hawkins testified, in substance, as follows: Bartlett, before purchasing, employed them to investigate the title to the lot in controversy. They found the recotd of the Fergerson deed. There was no probate of record. If it was there, it did not follow the deed as a part thereof. They had a certified copy made by the clerk, which they now have in court. They advised Bartlett that this was an irregular registry, was not legal notice to any one, and that he could safely purchase. He bought, and afterwards sold to Jordan. Witness, Vason, was called on by Bartlett to see Jordan in reference to the sale. Jordan stated that he had heard that there was another deed of record, and he did not wish to pay for this lot unless the title was good. Witness explained to him the facts, and stated that he and Hawkins both agreed that the defective record did not affect his title. He replied that he was satisfied there was no danger, but he did not wish to have a law-suit, but that if Bartlett would secure him from trouble and danger he would pay for the lot. This was done and the trade consummated. Neither of witnesses represented the present defendants until they were served in October, 1872. The entry of record on the Fergerson deed was in the handwriting of the then clerk of the superior court. Gardner was notified of the suit against Herron, but neither appeared nor employed counsel. Neither he nor his wife ever resided in Lee county.

The plaintiff also introduced the will of Theodocius Cook, executed on August 26th, 1834, and admitted to probate on the 17th of the following September. It consisted of three items; the first asserted that he owed no debts; the seconddisposed of lot number one hundred and forty-three, in the *third district of Henry county; the third disposed of certain rents and debts due to him.

The remaining facts, so far as material, will be found in the opinion.

The jury found for the plaintiff the premises in dispute, $2,178 00, mesne profits, and costs of suit.

Defendants moved for a new trial on the following grounds:

1st. Because the court erred in allowing plaintiff to discontinue said case as to Herron, and to make Gardner and his wife sole defendants therein, it appearing that Herron died in 1870; that they were not served with a copy of the declaration until October, 1872, and that they then resided, and still reside, in Richmond county, Georgia; also in holding that this court had jurisdiction over them, that service as to them was regular, and in allowing plaintiff's case thus to proceed.

2d. Because the court erred in allowing the affidavit of Mrs. Sarah Cook to be read in evidence by plaintiff, without any proof of its execution or having laid the foundation for it, and in holding that, as it had been used by defendant, Herron, to sustain an application to require plaintiff to file his deed in office, it could now be used by plaintiff as evidence.

3d. Because the court erred in allowing Gill to testify that the probate to the Fergerson deed was upon the record, as a part of said deed, when he inspected it in 1851, although it was not contained in the certified copy of the record made by the keeper thereof in 1853, before the records were destroyed by fire.

4th. Because the court erred in allowing said deed to go to the jury as an ancient document upon the evidence of Sneed and Gill—Sneed stating that the deed, with others, was placed in his hands, as an attorney, by Kennedy as one of the deeds under which the latter claimed the land, it not being thirty years old at the time of the suit in 1858, and there being no evidence of possession of the land thereunder.

5th. Because the court erred in allowing said deed to be *placed in evidence upon the defective probate, and without proof of its execution.

6th. Because the court erred in admitting evidence to prove the death and hand-writing of Cook, one of the subscribing witnessee to the Fergerson deed, the evidence of Sarah Cook, the other subscribing...