Hansen v. Owens
| Decision Date | 15 May 1909 |
| Citation | 64 S.E. 800,132 Ga. 648 |
| Parties | HANSEN v. OWENS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last heard of as living.
[Ed Note.-For other cases, see Death, Cent. Dig. § 2; Dec. Dig. § 2. [*]]
Where it is sought to raise a presumption of death by reason of the absence of a person from his known place of residence or domicile for seven years without being heard from, by the testimony of a witness who merely makes inquiry to lay the foundation for such proof, and who himself is not cognizant of any of the facts, the evidence must show that there has been an unsuccessful effort to find the absent person by search and diligent inquiry at his last known place of residence and among his relations or acquaintances, if any and it must appear that the absent party has not been heard from for seven years or more by those who would be most likely to hear from him.
[Ed Note.-For other cases, see Death, Cent. Dig. § 3; Dec. Dig. § 2. [*]]
Evidence of absence of a person from his original place of residence will not raise the presumption of death, where it appears that he has moved to another place and there located.
[Ed Note.-For other cases, see Death, Cent. Dig. § 3; Dec. Dig. § 2. [*]]
Where a deed was executed by some of the children of a deceased person as his heirs at law, and it appears that there were other children and descendants of children, but it is sought to show that those who executed the deed inherited the entire estate by virtue of the death of the other descendants of the testator, presumed to arise from their absence unheard from for more than seven years, there must be some evidence as to their status when last heard from, in respect to their being married or having other heirs.
[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 5, 6; Dec. Dig. § 4. [*] ]
Although plaintiffs may claim the right to recover land by virtue of prescriptive title and prior possession, as well as on account or a paper chain of title, yet where it was necessary, in order to sustain such a chain, to show inheritance by certain persons from others, and the proof on that subject was inadequate at least as to some of them, a charge in reference to a presumption of death, which was not properly adjusted to the evidence and which was calculated to mislead the jury, was erroneous.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066. [*]]
If a deed purports to be executed in the presence of, and is attested by, an officer authorized to make such attestation and another witness, and is recorded, presumptively the signature is genuine; but this may be disproved, and the signature shown to be a forgery.
(a) Evidence that the person who purported to sign the deed could not write is admissible for that purpose, and is for the consideration of the jury.
(b) In such a case, if the jury believed from the evidence that the person whose name appeared to be signed to the deed in writing could not write, and therefore did not in fact personally sign it, no presumption of law would arise that he had authorized some other person to sign it for him. One who sought to set up such fact would carry the burden of proving it. Atkinson, J., dissenting.
[Ed. Note -For other cases, see Deeds, Cent. Dig. §§ 562-573, 595-600; Dec. Dig. §§ 193, 199. [*]].
In order for a deed to convey perfect title, it must be signed by all the persons owning the land as tenants in common; but a deed which purports to convey the entire title may operate as color of title although it is not signed by all the owners, but as against the other owners it must be accompanied by adverse possession of such a character as would affect them.
(a) The deed from certain persons, purporting to convey as the heirs of Hiram Waller, deceased, did not on its face indicate a conveyance of a fractional part of the lot, or less than the whole.
The evidence did not authorize a recovery in this action of expenses of litigation against the defendant.
Error from Superior Court, Ben Hill County; U. V. Hill, Judge.
Action by John S. Owens and another against F. J. Hansen. Judgment for plaintiffs, and defendant brings error. Reversed.
Jay & Jay, Haygood & Cutts, and O. J. Wimberly, for plaintiff in error.
E. W. Ryman and Edgar Latham, for defendants in error.
John S. Owens and Edgar Latham brought an action against F. J. Hansen to recover certain land, together with mesne profits and expenses of litigation, including attorney's fees. They obtained a verdict for the land, and also for $445 for expenses of litigation. The defendant moved for a new trial, which was overruled, and he excepted.
1-5. The plaintiffs relied on a paper chain of title coming down from the state to them, upon title by prescription, and upon prior possession. The state granted the land lot including the land sued for to Hiram Waller. One link in the chain of title set up by the plaintiffs was a deed from four persons, described as heirs at law of Hiram Waller, deceased, to E. H. Moore. In order to support the contention that their chain of title was complete, it was necessary to show title from Hiram Waller. He did not make a conveyance to them; but they contended that he died intestate, and that they held a deed executed by all of the heirs of Hiram Waller. The date of his death does not appear; but there was testimony tending to show that he died in Bryan county, intestate, at the advanced age of 90 years, leaving surviving him three daughters and five sons, all of whom, at the time of the trial of the case, were claimed to be dead, except one son and one daughter. The dates of the death of those deceased nowhere appear. The deed relied upon by the plaintiffs as a conveyance by all of the heirs at law of Hiram Waller was executed in 1884, and was signed by only three of the sons and one daughter, who, it was contended, were the only sons and daughter of Hiram Waller then in life. The several sons and daughters who had died previously to that time had all been married and had had children; but the evidence does not disclose where they lived, or whether any of them survived their respective parents. Under these facts, it could not be said that the deed under which the plaintiffs claimed was the deed of all of the heirs of Hiram Waller. The evidence does not affirmatively show that the title of the deceased sons and daughters of Hiram Waller descended by inheritance to the surviving sons and daughters who executed the deed in 1884, or that the latter otherwise acquired the title of the said sons and daughters. See 14 Cyc. 100; Skinner v. Fulton, 39 Ill. 484.
In order to account for the descendants of Hiram Waller, other than those who signed the deed, and to raise a presumption of death of such descendants, one of the attorneys for the plaintiff testified that he went to Bryan county, and to Savannah, Chatham county, and undertook to locate all of the descendants of the children of Hiram Waller who had died before the deed was made by the four heirs to Moore in 1884; that he could not find anybody who had heard of them in years and years-he thought it was about 15 years since anybody had heard of where they were. A son and a daughter of Hiram Waller testified by interrogatories. The son testified that in 1884 two daughters and a son of Hiram Waller were dead, and that he thought another son, named James, was also dead, but did not know; that the deceased son first mentioned left three children living, whose names he gave; that one of the deceased daughters left four children, whose names he stated; that he thought that the other daughter had one or two children; that he did not know where any of these children "live now"-that is, at the time the testimony was delivered; and that James had no living children "in this country." The daughter of Hiram Waller, who was a witness, testified that in 1884 she and three of her brothers were living; that "James went to California when he was 21, and has since been reported dead"; that one of her deceased brothers and two sisters had living children at the time of their death. Neither of these witnesses was asked as to the residence of the descendants of Hiram Waller when last heard from, nor did they testify that they had not heard from them within several years, or that they did not know what had become of them, except that the son stated that he did not know where they lived at the time of the trial. Neither was it shown that any inquiry had been made of these two witnesses, or of any particular person, or of what person or persons, to ascertain where these descendants lived, or what was their last known place of residence. In general terms, one of the attorneys for the plaintiffs, as above recited, stated that he had made inquiry in Bryan county, and in Savannah, and could not find anybody that had heard of them in about 15 years. Why the inquiry was made in Chatham county is not apparent; nor in Bryan county, except that Hiram Waller and some of his children seemed to have lived there. Whether those who bad died leaving descendants continued to live there until their death, or whether their descendants ever lived there, was not proved.
The presiding judge on this subject gave the following charge ...
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