Jordan v. Pollock

• Decision Date: 31 August 1853
• Docket Number: No. 23.,23.
• Citation: 14 Ga. 145
• Parties: Geo. W. Jordan, et al., plaintiffs in error. vs. Thomas Pollock, administrator.
• Court: Georgia Supreme Court

14 Ga. 145

Geo. W. Jordan, et al., plaintiffs in error. vs. Thomas Pollock, administrator.

No. 23.

Supreme Court of the State of Georgia

AUGUST TERM, 1853.

Ejectment, in Houston Superior Court. Tried before Judge Powers, April Term, 1853.

This was an action brought by Thomas Pollock, as administrator of Risdon Smith, deceased, against Geo. W. Jordan, for the recovery of real estate, and to which George Walker was made co-defendant. Both parties claimed title under Wm. Smith, the father of the plaintiff's intestate. The plaintiff, after the usual affidavit, introduced as witnesses, Thomas Spaight, Lewis S. Spaight and Samuel Woodard, who testified that they were present when William Smith executed a deed to his son, Risdon Smith, for the land in dispute; that at the same time, they saw him execute similar deeds to his other children, for other portions of his estate. That after said deeds were duly executed and witnessed, they were handed by Wm. Smith to Risdon Smith, with instructions, "to take them, and put them away until he called for them, for he was not ready to turn over the property they conveyed—not at that time, for the crop was not all housed." This was in November, 1847. The plaintiff then introduced Joseph Tooke, who stated that in the fall of 1850, he had met Walker, the defendant, who told him he had bought that land, (meaning the premises in dispute.) Witness asked him if he did not expect a difficulty about it; he said no, that he had taken legal advice before he went into it; he told witness that he had given about rive thousand dollars for it, and thought he had bought a good bargain. Plaintiff then offered Garrett Smith, as a witness, who being objected to as being one of the heirs at Law, of Risdon Smith, the witness executed a release of all his interest in the estate of said Risdon, so far as related to the property now in dispute. The defendant still objected to his competency, because he still had an interest in the general estate of Risdon Smith, and the estate was liable for the costs of suit. This objection was overruled by the Court, and the witness was admitted. He testified, that he saw Wm. Smith make the deed spoken of by the other witnesses; that he saw Risdon in possession of the deed, and of the land, in Marchor May, 1848; that he died in July, 1849. The plaintiff having closed his testimony, the defendant moved the Court for a non-suit on the following grounds:

1st. Because there was no evidence of a delivery of the deed, alleged to have been made by William Smith to Risdon, for the premises in dispute.

2nd. Because the plaintiff had shown no order of the Court of Ordinary to sell the land, or to divide it among the heirs and distributees.

3rd. Because there was no evidence of actual notice to Walker, of the deed from William to Risdon Smith before he purchased.

The motion for non-suit was refused by the Court.

The plaintiff after having closed, and the Court having adjourned until the next day, then moved to re-open the case, for the purpose of introducing the several deeds which the witnesses had mentioned, as having been executed by Wm. Smith, at the same time with the deed to Risdon; to which defendant objected, but the Court allowed it to be done; and the said deeds, with testimony identifying them were submitted to the jury, the defendant objecting to it all as irrelevant,

The defendant then offered the testimony of William Smith, to show that the deed to Risdon was never delivered: but the witness, on objection made, was held incompetent by the Court. He then introduced a deed from William Smith to George Walker, the defendant, conveying the land in dispute dated April 8th, 1850. The defendant then introduced the interrogatories of James McKinney, who stated, that in the summer of 1848, Risdon Smith had told witness, that his father had paid him in mules and negroes for the land in dispute.

The testimony being concluded, the defendants, by their counsel, requested the Court to charge the jury, that if the deed from William Smith to Risdon Smith, was directed by William Smith to be handed to Risdon Smith, to be locked up or put away until called for by him (the donor,) the possession of Risdon Smith, of the deed is no evidence of itsdelivery, until the character of the possession is shown to have been changed. Which charge the Court declined and refused to give as requested, because it was some evidence, coupled with other evidence, such as possession of the land under the deed, and other facts that might appear, to which refusal defendants except.

The defendants also requested the Court to charge the jury, that in order to charge a subsequent purchaser for value, with notice of a prior voluntary deed proof that such purchaser had heard of a difficulty, without showing what difficulty was referred to, is not sufficient; but it must be shown, that such a purchaser had actual notice of the prior voluntary deed— which charge the Court refused, and declined to give as requested but charged the jury, that they might infer actual notice from such facts, in connection with other circumstances, which would or might be sufficient to convince them, that defendant had actual notice, as proof in any other material facts, in a cause might produce conviction—to which refusal to charge as requested, and to which charge as given defendant excepts.

The Court charged the jury, that if they should believe that the deed from William Smith was delivered to Risdon, though never recorded, it was not competent for him and William Smith to re-vest the title in William, by tearing up of said deed or its destruction otherwise, so as to enable William Smith to sell to Walker; but that the title could only be re-vested by a deed of conveyance of equal solemnity, from Risdon Smith to William Smith—to which charge the defendants except. After the charge of the Court the jury retired, and returned with a verdict in favor of the plaintiff for the premises in dispute, and $2,333 for mesne profits with costs of suit

Whereupon the defendants, by their counsel, during the term aforesaid, after said verdict was returned, moved the Court for a new trial in said cause, on the following grounds, to wit:

1st. That the Court erred in opening the case, after the plaintiff had closed his case, and a motion to non-suit hadbeen disposed of; and a night intervened, to allow plaintiff to introduce the deeds of William Smith, for negroes to his children, the plaintiff not having the deeds in Court the day before.

2nd. The Court erred in admitting the said deeds for negroes from William Smith to his children.

3rd. The Court erred in admitting the evidence of Joseph Tooke, to go to the jury as evidence, to authorize the jury to find that George Walker had actual notice of the deed of gift, from William Smith to Risdon Smith, for the premises in dispute, before he purchased the premises of William Smith, for a valuable consideration.

4th. The Court erred in ruling, that it was not competent for Risdon Smith to have delivered back the deed to the premises in dispute, (after delivered though not recorded) to William Smith (the donor), and thus re-vest the property given in William Smith, so as to enable him to sell and convey to Walker; but that it must be done by deed of conveyance.

5th. The Court erred in refusing to grant the motion of defendants, (made when the plaintiff had closed his case) to non-suit said plaintiff.

6th. That the Court erred in refusing to charge the jury, that when the deed for the premises in dispute, had been proved to have been banded to Risdon Smith by William Smith to be locked up, or put away till called for by him; the possession of Risdon Smith is no evidence of its delivery, until the character of that possession is shown to have been changed.

7th. The Court erred in refusing to charge the jury as requested, that in order to charge a subsequent purchaser, for valuable consideration with notice of a former voluntary deed proof, that he had heard of a difficulty, without showing what difficulty was referred to, is not sufficient. But it must be shown, that such a purchaser had actual notice of the prior voluntary deed; but charged the jury, that they might infer actual notice from such facts, in connection with other circumstances, which would convince them that defendant had actual notice as in any other material facts in a cause. 8th. That the jury found contrary to law.

9th. That the jury found contrary to evidence.

10th. That the jury found contrary to the justice and equity of the case.

11th. Because the Court erred in deciding, that Garrett Smith, one of the heirs at law of Risdon Smith, was a competent witness; he being objected to on the ground of interest; the release of the witness being before the Court, as exhibited in the brief of testimony, and also the agreement of the heirs being before the Court.

Which motion was overruled and refused by the Court, on the several grounds therein contained and set forth, and defendants except and say, that the Court erred in refusing said motion for a new trial, and in overruling all the grounds therein contained.

Poe, Nisbet & Poe, and Giles, for plaintiff in error.

Warren, S. & R. P. Hall, for defendant.

Poe, Nisbet & Poe, for plaintiff in error, submitted the following brief:

1st. To the first point the following authorities are cited: — Stewart vs. Grimes (Dudley Rep. 209).

2nd. To the second point, we contend that the delivery of the deed for the negroes is not a circumstance tending to show that the deed for the land was delivered, and more especially when it is shown that Risdon Smith repudiated the gift; and the covenant between the heirs proves that the land was restored to the estate of William Smith.

3rd. To the third point we cite the following authorities: 6 Geo. Rep. Fleming vs. Townsend, 107, 110. 8 Geo. Rep. Colquitt vs. Thomas et al. 268, 269.

4th. To the fourth point we cite the following authorities: 1 Shep. Touch. 70...