Knorr v. Raymond

• Decision Date: 30 September 1884
• Citation: 73 Ga. 749
• Parties: Knorr, administrator, et al. vs. Raymond et al.
• Court: Georgia Supreme Court

73 Ga. 749

Knorr, administrator, et al. vs. Raymond et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

[Jackson, C. J., being disqualified, Judge Clarke, of the Pataula circuit, was designated to preside in his stead.]

[COPYRIGHT MATERIAL OMITTED]

Evidence. Principal and Agent. Possession. Res Gestae. Prescription. Infancy. Minors. Husband and Wife. Words and Phrases. Estates. Reversions New Trial. Judgments. Trustees. Title. Contracts. Estoppel. Deeds. Notice. Before Judge Adams. Chatham Superior Court. June Term, 1884.

Reported in the decision.

R. R. Richards; W. M. Heyward; T. M. Norwood; Joseph A. Cronk; Lester and Ravenel, for plaintiffs in error.

Geo. A. Mercer, for defendants.

Clarke, Judge.

On May 10th, 1880, ejectment was begun in Chatham superior court, by the defendants in error, upon the following undisputed facts:

On October 1st, 1869, Augustus P. Wetter, for a valuable consideration, conveyed the premises, in fee simple, as his own property, to Dr. Erastus E. Marcy, who, on December 24th thereafter, made a deed of gift thereof to his daughter, Mrs. Emma Raymond. Wetter's claim of title was based on the 2d item of the will of Margaret Telfair, his wife's grandmother. But the construction thereof, which made him the beneficiary legatee, was overruled by this court in the case of Wetter, trustee, vs. Walker, 62 Ga., 142. By that now undisputed interpretation, it is conceded that said Wetter had no title, in his own right, when he sold to Marcy, but that the defendants were entitled in remainder, the life tenant being dead.

Neither said Marcy nor Mrs. Raymond ever had possession in propria persona. But prior to said October 1st, to-wit, in January or February, 1869, Wetter had put into possession, as his tenant, one Jim Hamilton, who, at that date, was so holding, and continued to hold till the beginning of this suit. During the whole period from October 1st, 1869, till his death, pending this suit, said Wetter resided on the western half of the Sharon plantation, the land deeded by him to Marcy being known as the eastern half of the same plantation. In September, 1876, one Frank Sawyer, by virtue of a written contract of lease with one Weed, as agent for Marcy, went into possession of a portion of said eastern part. On February 21st, 1879, R. E. Lester, as attorney at law for the children of said Wetter, demanded of said Sawyer the portion held by him; and shortly afterwards, said Wetter actually ousted Sawyer on a claim that the land belonged to his children, for whom he was trustee. About the same time, said Wetter, upon the same claim of right, put one Tom Campbell into possession of the whole of the disputed premises, subordinating Jim Hamilton to him. Thus, as conceded, whatever possession, or claim of being in possession, Marcy or Mrs. Raymond had, was terminated about February 21, 1879. Said Wetter held till his death for his children.

The suit, on the demises of Marcy and Mrs. Raymond, was brought against said Wetter. He dying pendente lite, his administrator, Louis Knorr, was substituted as a party. Edward Telfair Wetter and Alberta T. Gould, the two surviving of the said children, were also made defendants on their own motion, and, in like manner, said Knorr, as administrator of Conrad and of Meta Wetter, the deceased of said children. So the cause proceeded to trial, and to a verdict in favor of the plaintiffs, followed by a motion for a new trial by the defendants on forty-one grounds, upon the overruling of which error is here assigned

1. The plaintiffs below relied mainly on prescriptive title by possession under color of Wetter's said deed. Having never been in possession in their own persons, they claimed said Hamilton as their tenant. To establish this claim, they offered, and the court admitted, the following testimony of said Hamilton, to wit: "The rent" (paid by me) " was reduced to three dollars per month about 1876. Captain Wetter" (i. e., Augustus P.) " then toldme that he had nothing to do with the rent, as he had sold the land to Dr. Marcy, and was collecting the rent for him, and that I must see Mr. Weed.... I failed to pay my rent in 1875. Wetter told me in 1875 he would have to put me off if I did not pay him the rent, which he said belonged to Marcy. In 1873, for the first time, Wetter told me the place was Marcy\'s. In 1877, he told me to see Weed. Captain Wetter collected rent from me from the time I first paid rent... till his death. I never paid rent to anybody but him."

Frank Sawyer was also allowed to testify for plaintiffs) on this point, as follows, to-wit: "In 1876, I went to Captain Wetter to lease a tract" (of the disputed premises). " He told me Dr. Marcy owned the part I wanted, and that I must go to Mr. Weed, who was Dr. Marcy's agent."

These sayings of Captain Wetter, as to Marcy's rights and his representing them, the defendants moved to exclude, or at least to have confined, in effect, to such personal interests as Captain Wetter might appear to have in the lands, and denied effect as to the rights of any other defendant. The refusal of this motion is assumed as ground for a new trial.

These statements of Captain Wetter are manifestly competent against himself as admissions. In this application of them, they go to show that, although he was managing and controlling the place, creating tenancy and collecting rents, he was doing all this for Marcy; and that his acts of ownership and the possession thereby witnessed were Marcy's. But, say the plaintiffs in error, such sayings are not good to establish the same fact as against the children. They argue that Captain Wetter either was their continuing trustee, during the period covered by the statements, or, by reason of the trust having been executed, he had ceased to represent their title at all. If the former, they claim that the statements were not made in the line of his duty as such trustee—were not such admissions asthat agency authorized him to make. If the latter, they say, he not representing their rights, his sayings are those of a third party.

We reply: If he was a continuing trustee, holding the legal title for them, his admissions, while actually handling the subject-matter of the trust, in such acts as collecting the rents (which as trustee he was authorized to do), would be good against them. Code, §3774. The Code, §2206, says: "The declarations of the agent as to the business transacted by him are not admissible against the principal, unless they were a part of the negotiation and constituting the res gestae, or else the agent be dead." Captain Wetter was dead when the evidence was admitted. But whether he was a continuing trustee, or the trust had terminated, his statements were admissible as parts of the res gestae. " When it is necessary, in (he course of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible evidence, as part of the res gestae, for the purpose of showing its true character." Bouvier's Law Diet., Title Res Gestae; Code, §3773. In this cause, it was needful to inquire how, in what character, in whose right and for whom Captain Wetter was acting in controlling, leasing and collecting rents. The fact of his exercising such acts of ownership would receive its character, as being the assertion of dominion in his own right, or for some one else, from the intention with which he acted, if such intention was manifest. So his intention was to be " inquired into." His own declarations, while negotiating about the amount of the rent, and about its enforcement, and when called on to lease out a part of it, while he was controlling and directing, are parts of the res gestae. Upon this principle, it is constantly held that the declarations of one in possession are admissible as to the claim under which he holds. So far does this doctrine go, that such statements are not only admissible against the tenant, and when made against his interest, but theyare admissible, even in his own behalf, against all the world, to prove adverse possession. Code, §3774; 16 Ga., 16; 42 Id., 623; 62 Id., 53.

The 5th, 6th, 7th and 8th grounds of the motion for a new trial are so many modes of objection to this evidence, and are thus adjudicated.

2. These declarations of Captain Wetter, while he was so superintending this land, tend to show that he was Marcy's agent therein, and that his occupation, by his tenant, Hamilton, was the possession of Marcy. There was no contradictory evidence as to the intention and character of such acts. On December 23, 1869, E. A. Raymond, in behalf of his wife, wrote to Captain Wetter as follows: " Dr. Marcy has lately presented to my wife a deed to that portion of Sharon plantation recently transferred to him by you. I shall be much obliged if you will forward to me a map of this portion of the property." Wetter replies, January 16,-1870: " The plat, or map, will be forwarded to you as soon as the county surveyor furnishes the same..... About a week ago, I had an offer of $5,000 for my portion of Sharon, but declined the same. If you are desirous of selling your portion, inform me at once of the fact, and I will act for you, and I have no doubt that the same party will purchase it." This correspondence, without objection by defendants, was introduced by plaintiffs. It strongly corroborates the conclusion inferred from the testimony of Hamilton and Sawyer. Thus the weight of the evidence is that Hamilton's possession was Marcy's. So far as the jury found that fact, the verdict was not " contrary to law" or " to evidence." 42 Ga., 626.

3.The court charged the jury: " If, at the time of the conveyance by Wetter, there was a tenant on the land, placed there by Wetter, —if that tenant continued to reside on the land, treating and dealing with Wetter, but Wetter acting for the plaintiff, then this tenant became the tenant of the plaintiff, and his...