King v. Sears

• Decision Date: 17 April 1893
• Citation: 18 S.E. 830,91 Ga. 577
• Parties: KING et al. v. SEARS. SEARS v. KING et al.
• Court: Georgia Supreme Court

18 S.E. 830

91 Ga. 577

KING et al. v. SEARS.

SEARS v. KING et al.

Supreme Court of Georgia

April 17, 1893

Syllabus by the Court.

1. Where, for the purpose of authenticating a tax sale in a way to render the prescribed affidavit a substitute for other evidence, the statute required the mayor to make oath that all the notices and advertisements required by the act have been duly and regularly given, an affidavit, silent as to advertisements, but deposing that all the notices required by the act have been so given, is insufficient.

2. The description in a conveyance being in these terms: "A certain lot or parcel of land, lying and being within the incorporate limits of said city of Brunswick, and situate in that part known as 'Old Town.' For a more particular description of said lot or parcel of land, reference is hereby made to the plan of said city, executed by George R Baldwin, civil engineer, by him signed, and dated May 25th 1837,"--the plan referred to not being produced, nor its contents proved,--the description is too vague and uncertain to be applied definitely to any premises whatever, and no recovery could be had upon the deed, were it otherwise sufficient to pass title. Nor would the production of the plan aid the defective description in the deed, unless the plan shows only one lot or parcel in Old Town. If it shows more than one, the uncertainty as to which particular one was sold would remain, and be fatal.

3. A deed more than 30 years old, and coming from the proper custody, purporting to have been executed in another state attested by one witness, certified by him as a commissioner of deeds for this state in that state, under his seal of office, as duly acknowledged before him by the maker, and recorded in this state more than 30 years ago, the land conveyed by it being situated in this state, and possession of the land by the grantee in the deed for several years being shown, is admissible in evidence without further proof of its execution. The want of two witnesses does not render the deed invalid or inoperative as a conveyance of the premises described in it.

4. A description in a deed in these terms: "All those six certain lots, pieces, or parcels of land situate, lying, and being in the town of Brunswick, county of Glynn, and state of Georgia, heretofore, and up to the making of this indenture owned by the parties of the first part, and known and distinguished on a certain map of the said town of Brunswick made according to the survey of the said town, and recorded with the proper officer in the said county of Glynn, being the map mentioned and referred to in the several conveyances heretofore made, and duly recorded, of the property hereby conveyed, as water lot number twenty-seven and town lots numbers twenty-four, twenty-five, one hundred and fifty-four, three hundred and twenty-nine, three hundred and thirty," is sufficiently certain to show that the parcel designated as town lot No. 24 was meant to be conveyed; and the aid of extrinsic evidence may be invoked to identify that lot, and establish its precise location.

5. A stranger to a deed cannot urge, as an objection to its validity, that it was executed for the sole purpose of enabling the grantee to maintain an action of ejectment in the federal court to recover the premises from an adverse holder, the deed being made since the adoption of the Code, which abrogates the old law, prohibiting the conveyance of land pending an adverse possession. When a deed is offered in evidence, if the objection to its admission concedes that it was in fact executed and delivered, the objection should be overruled, unless the matter of the objection would, if established, render the deed inoperative for the purpose sought to be subserved by its introduction.

6. Under the evidence the jury could have found a title by prescription, but the charge of the court did not constrain them to pass on that question.

7. The plaintiff claiming under a conveyance from a prior occupant, who went in under color of title, and remained for less than seven years, whether a recovery could be had upon such prior possession alone and the deed to the plaintiff, against one who entered under claim of right, but who shows neither title nor lawful right, depends upon whether the plaintiff's grantor, on going out of actual possession, or afterwards, intended to abandon the premises, or whether he left with the intention to return, and remained in that mind until he conveyed to the plaintiff.

8. So long as the superior court is not finally adjourned for the term, the term continues, though other courts of the circuit be held in the mean time. A motion for a new trial may be filed in the recess as well as in open court. When so filed, it may be acted upon by the judge at any time during the term.

9. Where the judge certifies that the brief of evidence has been filed within the time prescribed by law, this will be taken as true, although there may be no signed entry of filing on the brief itself. The act of November 12, 1889, does not, in cases where the term continues longer than 30 days, require that the brief shall be approved within 30 days after the trial, but only that it shall be filed within that time, subject to approval.

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action in ejectment by Oceanna Sears against James F. King and others. There was a verdict for plaintiff, and a new trial denied. Defendants bring error, and plaintiff filed a cross bill of exceptions. Reversed.

A description of property as "a certain lot or parcel of land, lying and being within the corporate limits of said city of B., and situate in that part known as 'Old Town,' " and referring, for a more particular description, to "the plan of said city, executed by B., civil engineer, by him signed, and dated May 25, 1837," is insufficient, if there is no way of determining the contents of the plan, or if the plan shows more than one lot or parcel in "Old Town."

Where, for the purpose of authenticating a tax sale in a way to render the prescribed affidavit a substitute for other evidence, the statute required the mayor to make oath that all the notices and advertisements required by the act were duly given, an affidavit, silent as to advertisements, but deposing that all the notices required by the act were so given, was insufficient.

The following is the official report:

The actual plaintiff below was Oceanna Sears. She obtained a verdict against King for the premises in dispute (the action being one of ejectment) on May 10, 1892, at the May term of the superior court of Glynn county. On June 9, 1892, King filed his motion for new trial, together with a brief of the testimony. On June 10, 1892, and while the judge below was in Ware county, a rule nisi was granted, and an order taken that the grounds of the motion be examined, considered, revised and approved on the hearing to be had on July 5, 1892, at Brunswick. On the same day an order was granted that defendant have until July 5th to prepare and file, under the approval of the court, a brief of the evidence in the case. On July 6, 1892, an order was passed, reciting that Glynn superior court, at the term at which the case was tried, to wit, "this present term," was in session for more than 30 days, and ordering that the plaintiff show cause instanter, or as soon as counsel could be heard, why the judgment and verdict should not be set aside, and a new trial granted, etc. This order was passed in open court. When the motion for new trial was called up for hearing, respondent in the motion moved to dismiss it, which motion was overruled. The motion for new trial was also overruled; the order overruling it being headed, "In Glynn superior court, May term, 1892, held July 7, 1892," and to this ruling King excepted. To the ruling refusing to dismiss the motion for new trial, plaintiff excepted. The action was for the recovery of a tract in Brunswick, known "on the map or plan of that city made by George R. Baldwin in 1837 as Old Town lot number 24, and which is in the shape of a rectangle, measuring ninety by one hundred and eighty feet, bounded on the west by Bay street, east by Oglethorpe street, south by lot number 25, and north by lot number 23." The motion for new trial contained the general grounds that the verdict was contrary to law, evidence, etc.; also, because the court erred in overruling the objection of defendant to the deed of December 31, 1841, from U Dart, mayor of Brunswick, to A. H. Merriam, the objection being upon the grounds: There is no execution or other authority for sale accompanying the deed. There is shown no authority for the making of such a sale as mentioned in the deed, or the execution of such a deed. There is shown and appears, neither upon the face of the deed or elsewhere, any compliance with any authority whatever. The deed does not appear to have been recorded as required by law, there being or appearing no proper certificate to that fact. The affidavit attached to, and in support of, the deed, on its face does not show compliance with the act recited in the face of the deed as authority for the sale, in that the affidavit states that the notices were given as required by the act, but does not state what notices were given, and does not state that the advertisements were published as required by the act. The deed in question was part of plaintiff's chain of title. It recited that by an act of the general assembly of December 26, 1837, amending an act to incorporate the town of Brunswick, it was enacted that the mayor and council should make, or cause to be made, under oath, in March of each year, an equitable valuation of all property within the city, upon which they should assess and levy...