Ingram v. Little

• Decision Date: 31 August 1853
• Docket Number: No. 27.,27.
• Citation: 14 Ga. 173
• Parties: Bryan Ingram et al., plaintiffs in error . vs. William G. Little, defendant.
• Court: Georgia Supreme Court

14 Ga. 173

Bryan Ingram et al., plaintiffs in error . vs. William G. Little, defendant.

No. 27.

Supreme Court of the State of Georgia

AUGUST TERM, 1853.

Ejectment in Crawford Superior Court. Tried before Judge Johnson, March Term, 1853.

This was an action to recover possession of land, brought by William G. Little against Bryan Ingram and others. The plaintiff introduced a grant from the State to John B. Adair for the land in question; and a deed dated 19th Dec. 1833, from Adair to himself. The deed was objected to as showing on its face that several portions of it, viz: the name of the grantee; the amount of the consideration; a part of the date and the county When executed, were written in different ink and hand-writing from the body of the deed. The deed purported to be "signed and sealed" in the presence of three witnesses, to wit: Wm. Adair, James Anderson, J. I. C, and Whitman H. Adair.

To explain the assertions in the deed the testimony of Whitman H. Adair was introduced, Who stated that the paper had been sent to him at Milledgeville with the several places in question left blank; that it was brought by Mr. James Anderson, one of the witnesses to the execution, with a letter from John B. Adair, requesting that Anderson and witness would consummate the bargain for the sale of the land, and fill up the blanks, which they did, and W. H. Adair then signed it himself as a witness, and the deed was delivered to Wm. G. Little by James Anderson, as the agent of John B. Adair. The witness further stated that he had heard John B. Adair, some years afterwards when the deed had been sent witness attachedto some further interrogatories, acknowledged on seeing the document, that the same was his act and deed.

To this testimony, and to the deed itself, defendant objected on the ground that the authority to the witness and Anderson to fill up the blanks was in parol, and that consequently their action was unauthorized by Law. The Court admitted the testimony and held the deed to be good as part of the chain of title, and also as color of title to support adverse possession.

The plaintiff then introduced as a witness Joshua Tennison, who testified that in 1833, Thomas Little, the father of plaintiff, went into possession of the land, claiming no title, but pro-fessing to hold under Wm. G. Little; that he continued in possession until he was dispossessed by the Sheriff in 1842. To this testimony defendants objected, on the ground that the same was illegal, which was overruled by the Court.

The plaintiff having closed the defendants introduced sundry Justice Court fi. fas. against Thomas Little, under which the land had been levied on as his property and sold; and also the Sheriff's deed to E. Webb, and deeds from Webb down to Ingram, the defendant, now in possession. Defendant then offered the evidence of James Hobbs and E. Evans, to the effect that Thomas Little had told them, while in possession of the land, that it was his, and that his son had bought it for him, which was objected to by the plaintiff and ruled out by the Court. The testimony being concluded, counsel for defendant requested the Court to charge the jury:

That the deed from John B. Adair to W. G. Little, although it might have been good at first, might become fraudulent as against creditors of Thomas Little, by being concealed, and not recorded within a reasonable time; and if the jury believe from the evidence that the deed was not recorded in a reasonable time, then the deed is fraudulent and cannot be made the foundation of a recovery in ejectment. Again, if W. G. Little failed to give notice of his title, by recording the same, or in some other public manner, until the judgments under which the land was sold were obtained, that he cannot now set up his title against a purchaser at Sheriff's sale of the land in disputewithout actual notice of the title of W. G. Little, provided more than twelve months intervened between the taking of said deed and the sale by the Sheriff:

That if the land would have been found subject to the executions under which the (defendants purchased, had W. G. Little claimed it (the land) under the levy, that the purchaser took a good title.

That if the jury believe that W. G. Little was guilty of any fraudulent conduct, by failing to spread his deed upon the records of the county, or otherwise, he cannot recover:

That if Thomas Little had seven years' adverse possession of the land before the sale by the Sheriff, that the defendants took a good title at the Sheriff's sale, and plaintiff cannot recover; and the question of adverse possession is a question for the jury:

If John B. Adair was not in possession of the land at the time he sold to W. G. Little by deed, and any other person was in possession holding adversely, or not holding under Adair, that the deed to W. G. Little is void, and cannot be made the foundation for a recovery in this case; and the question of adverse possession is a question for the jury:

That if W. G. Little, by his neglect to record said deed, or otherwise enabled Thomas Little to perpetrate a fraud by getting credit on the faith that the land belonged to Thomas Little, they should find for the defendants; and in considering this question of fraud, the fact that Thomas and W. G. Little being relations, is a badge of fraud:

That the judgment under which defendants purchased bears date February, 1841; and the deed was not recorded until January, 1842; and this is a badge of fraud.

That defendants can only be charged with rent from 1846; the time at which, according to the proof, defendants went into possession of the land.

The Court declined to give these instructions, as prayed for, and charged the jury as follows:

This is an action of ejectment, and is instituted to try the title to real estate. In this action, it is a settled rule of law, that the plaintiff must recover by the strength of his own title, and not by the weakness of that of the defendant. The Law favors the party in possession, and will not oust him unless the plaintiff shows a paramount title in himself. The defendants\' title may be defective, and yet the plaintiff cannot recover unless he proves in himself a perfect and complete title.

In view of this stern rule, let us now address ourselves to the investigation of the respective titles set up by the parties to this case. The plaintiff in this case sets up a two-fold title. He insists, First, That he has a perfect documentary title, and Secondly, That if this should be defective, he has a good possessory or statutory title. This documentary title is this, First, A grant from the State to Adair, of the premises in dispute, and secondly, A deed of conveyance from Adair to W. G. Little. If the jury believe from the evidence, that the grant and the deed are genuine, they constitute a perfect title in the plaintiff, and must have a recovery, unless it be successfully attacked by the defendants. His possessory title, as insisted on by the plaintiff, is in this: He maintains that his deed from Adair, however defective in itself, it may be (for the sake of argument) is color of title; that Thomas Little went into possession of the land as the tenant of the plaintiff, and that his possession was therefore the possession of W. G. Little; that that possession was unbroken, and continued from 1833 to the date of the sale by the Sheriff, under which the defendant claims. I charge you, gentlemen, that the deed from Adair to W. G. Little is color of title at the least; and if you are satisfied, from the evidence, that Thomas Little was in possession as the tenant of the plaintiff—subordinate to his title—and that that possession continued from 1833 down to the date of the said Sheriff's sale, or for the period of seven years, it does constitute a perfect statutory title in W. G. Little, and he must have a recovery, unless it be successfully attacked by defendants. Let us now look into the grounds on Which the defendants seek to attack the title of the plaintiff, as thus divulged. They insist that the deed from Adair to W. G. Little is fraudulent: 1st. Because of the relationship between the Messrs. Little—that of father and son. 2nd. Because the deed was not recorded until 1842.

3rd. Because he gave no notice of his deed by recording, or otherwise, prior to the rendition of the judgment, under which the premises in dispute was sold; and that it was incumbent on him to have given actual notice to the defendants, the purchasers at Sheriff's sale, of the existence of his title.

Let us look at each of these points in their order.

1st. It is urged that Thomas Little, being the father of W. G. Little, and continuing so long in the possession of the land from the time of his purchase from Adair, is a badge of fraud. In some cases, gentlemen, this relationship, accompanied with possession, is a badge of fraud, as for example, when the parties, in addition to the near relationship, are vendor and vendee. If Thomas Little were the vendor of W. G. Little of this land, either at private or public sale, then would the rule contended for be applicable. Under such circumstances, the relationship of father and son would be a badge of fraud. But do the facts of this case come within this principle? You must be satisfied from the evidence, that they do; and even if they do, you must go further and inquire whether the possession of Thomas Little is not satisfactorily explained. Was he the tenant of W. G. Little? Did he hold in subordination to the plaintiff, and was his possession consistent with a fair and bona fide title in W. G. Little? If the testimony answers these questions affirmatively, then you cannot infer the least iota of fraud from the relationship of the Messrs. Little.

The 2nd and 3d grounds of attack by the defendants upon the deed of Adair to the plaintiff, will be considered together. In their support, they insist:

That the deed from John B. Adair to W. G. Little, although it might have...