Kennedy v. McCardel

• Decision Date: 15 February 1892
• Citation: 14 S.E. 710,88 Ga. 454
• Parties: KENNEDY v. McCARDEL.
• Court: Georgia Supreme Court

14 S.E. 710

88 Ga. 454

KENNEDY v. McCARDEL.

Supreme Court of Georgia

February 15, 1892

Syllabus by the Court.

After the Code went into effect, (January 1, 1863,) a clerk of the inferior court was not one of the officers upon whose official attestation a deed conveying land was prepared for record. The act of February 18, 1854, (Acts 1853-54, p. 26,) was superseded by section 2668 of the first Code corresponding to section 2607 of the Code of 1882. The difference between the Code and the act referred to is not attributable to oversight or mistake in attempting to codify the provisions of a statute, but to an obvious purpose to limit and modify the prior law, the whole subject matter being deliberately considered and dealt with by the codifiers. Miller v. Railroad Co., 55 Ga. 143.

Error from superior court, Bibb county; A. L. MILLER, Judge.

Suit by Josephine McCardel against Mary A. McCardel for the recovery of land. Plaintiff died before the trial, and J. A. Kennedy as her administrator, was made party plaintiff. Judgment for defendant on nonsuit. Plaintiff brings error. Affirmed.

The following is the official report:

Mrs Josephine McCardel brought complaint for land against Mary A McCardel. Josephine having died before the trial, Kennedy, as her administrator, was made party plaintiff. The plaintiff was nonsuited, to which he excepted. He also excepted to the ruling out of a certain deed hereafter to be mentioned, and to the refusal of the court to reinstate the case, on motion made after the order of nonsuit was granted, but before it was entered on the minutes. Upon the trial it was admitted that both parties claimed from the same grantor, Frances Champion. Plaintiff introduced a warranty deed dated March 11, 1865, from Frances Champion to Mitchell McCardel conveying the land in dispute, located in the Warrior district of Bibb county. It was admitted that both parties to this deed died before the filing of the suit. Kennedy testified that, as administrator, he found among the papers of Josephine McCardel the deed last above mentioned, and that was all he could find after diligent search for other papers; that he could not find the deed from Mitchell McCardel to W. M. Riley as trustee, though he had searched for it, and he believed it to be lost; it was not in his custody or control. Thinks Frances Champion died in October, 1887, simply because he sent money out there to help bury her, as they came and told him she was dead, and wanted help. One Williams testified that W. M. Riley had been dead for 18 or 20 years, to the best of his recollection; that he met Frances Champion often at Mitchell McCardel's. They claimed to be brother and sister. Thinks Mrs. Champion lived on the lot in the Warrior described in the deed. Never heard of her owning any other land in Bibb county. Expects Mitchell McCardel was in possession of that land. Knows that Mrs. Champion moved...