Mcdowell v. Doe

• Decision Date: 31 January 1861
• Citation: 32 Ga. 39
• Parties: Roe & McDowell. vs. Doe, ex. dem. Irwin.
• Court: Georgia Supreme Court

32 Ga. 39

Roe & McDowell. vs. Doe, ex. dem. Irwin.

Supreme Court of the State of Georgia

JANUARY TERM, 1861.

Ejectment, in Stewart Superior Court. Tried before Judge Perkins, at the October Term, 1860.

This was an action of ejectment brought in favor of John Doe, ex. dem. William H. Irwin, against Richard Roe, casual ejector, and John McDowell, tenant in possession, for the recovery of lot of land Number 50, in the 22d district, of originally Lee, now Stewart county.

The defendant pleaded the general issue, and the Statute of Limitations.

On the trial of the case in the Court below, the following testimony was adduced on the part of the plaintiff, to-wit:

An affidavit of William II. Irwin, the lessor of the plaintiff, of which the following is a copy:

" Georgia, Stewart County:

" William II. Irwin comes before me, the undersigned, and on oath says, that he is advised, and verily believes, that the original plat and grant, from the State of Georgia, to Elizabeth and Harris Lyons, for lot of land number fifty, in the 22d district of originally Lee county, now Stewart county; and the original deed from the said Elizabeth and Harris Lyons, to Willis Barrington for said lot of land, dated sometime in the Spring or Summer of 1835; also the original deed from the said Willis Barrington to Richard Mathias, for said lot of land, dated in August or September, 1835, were all once in existence, in the possession of the said Richard Mathias, in his house, when said house was burned in the town of Roanoke, in the year 1836, and that he is advised, and verily believes, that said original plat and grant, and said original deeds, were then and there destroyed by fire in the house of the said Richard Mathias, in the said town of Roanoke, and that neither the said plat and grant, or cither of said deeds, are in the possession, power or control of this deponent."

This affidavit was duly signed, sworn to and attested.

An original affidavit made by the said Richard Mathias, who was, at the time it was made, one of the lessors of the plaintiff, but who had subsequently died, and his name stricken from the record by amendment made under an order of Court, of which affidavit the following is a copy, to-wit:

" Georgia, Stewart County:

" Before me, William J. McRea, a Justice of the Peace in and for said county, personally came Richard Mathias, who on oath says, that the orignal plat and grant from the State of Georgia, to Elizabeth and Harris Lyons, for lot of land number fifty, in the 22d district of originally Lee, now Stewart county; also, an original deed from the said Elizabeth and Harris, to Willis Barrington for said lot of land, dated sometime in the Spring or Summer of 1835; also an original deed from the said Willis Barrington to this deponent for said lot of land, dated in the month of August or September, in the year 1835, were once in existence, and in defendant's possession at the time his house was burned with the town of Roanoke, in the year 1836, and that none of said papers are in the possession, power or control of this deponent, all of them having been destroyed by fire at the time of the burning aforesaid."

This affidavit was duly signed, sworn to, and filed in the Clerk's office at the time it was made.

Upon this accounting for the absence and non-production of the original papers, the plaintiff read in evidence:

A copy plat and grant from the State of Georgia, in which the premises in dispute are given and granted to Elizabeth and Harris Lyons, illegitimates of Gray's district, Henry county; but in the habendum et tenendum their names are written Elizabeth and Harris Loyons, and on the plat, opposite the number of the lot, there is a memorandum of:

" drawn by Elizabeth and Harris Lyons, (Ill\'g\'ts) Morgan\'s district, Henry county."

Henry Irwin and Mary Irwin testified: That William H. Irwin is their son, and was born on the 22d day of September, 1831; that the land in dispute belongs to the said William H. Irwin, having been conveyed to him by Richard Mathias, by regular deed; that the land was paid for by Arabella Corbitt, the grand-mother of the said William H. Irwin, and the deed was made by Mathias to the said William H. Irwin, by the special directions of the said Arabella Corbitt; that the witness, Henry Irwin, did not pay his money, or any part of his money for said land, nor was he in debt at the time the deed was made; that the purchase money, $1,000, was paid by Arabella Corbitt in the year 1838; the deed was signed, sealed and delivered, in the presence of Elijah Miller and William Fitzpatrick, J. P., and others; that the last time the witness saw the deed, it was in the possession of witness, Henry Irwin, and in a trunk of said witness, which was broken open whilst the witness was absent from home, and, as both witnesses verily believe, the deed was stolen or taken away, and the witnesses do not know where it is; that neither of the witnesses are interested in the event of this suit.

John P. Lyons testified: That some time in the year 1833, Elizabeth Lyons and Harris Lyons, sold the lot of land in dispute, to Willis Barrington, for the sum of $50, and received the money therefor; that the said Elizabeth and Harris, signed, sealed and delivered a deed for said land to the said Willis Barrington, which deed was executed in Henry county, Georgia, and witnessed by the said witness, John P. Lyons, and some one else not now remembered; that at the date of the deed, Elizabeth was about twenty-nine years old, and Harris was about twenty-seven years old.

John R. Robinson testified: That he saw Willis Barrington sign, seal and deliver to Richard Mathias, a deed for the land in dispute sometime in the year 1835, in August or September; that the consideration money was paid by Mathias to Barrington, and the deed was witnessed by Frederick Mills, and by witness, who was, at the time, a Justice of the Peace of Stewart county, where the deed was executed, and who signed and witnessed the deed in his official character; the deed was a warranty deed, in the usual form of such deeds, and written by the witness.

Plaintiff then read, in evidence, a certified copy from the records of the Clerk's office of Stewart Superior Court, of a deed from Richard Mathias, to William H. Irwin, recorded the 25th of April, 1839, of which the following is a copy:

" Georgia, Stewart County:

"This indenture, made between William Henry Irwin, of the county and State aforesaid, of the one part, and Richard Mathias, of the same county and State aforesaid, of the other part, witnesseth, that the said Richard Mathias hath, this day, bargained and sold unto the said William Henry Irwin, a certain lot of land, lying and being in the twenty-second district of originally Lee, now Stewart county, known and distinguished in the plan of said district as lot number fifty, for and in consideration of $1,000, to him in hand paid, the receipt whereof is hereby acknowledged, wherefore the said Richard Mathias, his heirs, executors, administrators and assigns, do warrant and defend the right and title to said lot, from the claim of the said Richard Mathias, and his heirs, and executors, administrators and assigns, or any other person whatever, unto the said William Henry Irwin, son of Dr. Henry Irwin, about six years old, his heirs, executors, administrators and assigns, in fee simple forever. In witness whereof, I have hereunto set my hand and seal, this the 4th day of June, 1838.

"Signed, sealed and delivered in the presence of Elijah Miller, C. D. Riden and William Fitzpatrick, J. P.

"RICHARD MATHIAS, [L. S.]

"JOSHUA H. ALSTON."

The usual affidavit of the plaintiff to let in this copy deed was waived by counsel for defendant.

When the affidavit of Mathias; the copy plat and grant;the testimony of John P. Lyons; the testimony of John R. Robinson; and the copy deed from Mathias to Irwin, were tendered in evidence, they were each and all objected to by counsel for defendant, and the objection overruled.

John McDowell testified: That, as the overseer of Robert Toombs, he was in possession of the land in dispute on the 26th of September, 1854, the day on which this action was commenced; that he had been in possession since 1849; that there were forty acres cleared land on the lot, which was worth the sum of $60 per annum for rent, since the year 1849.

The plaintiff then closed, and counsel for defendant moved a judgment of non-suit, which motion the Court overruled.

The following testimony was then introduced by the defendant:

Frederick Mills testified: That Richard Mathias and Henry Irwin both told the witness that Mathias sold the land in dispute to Henry Irwin for $1,000, $600 of which was paid in cash, and small notes of $30 each given for the balance; that the trade was made in the Spring of 1838, and the notes to be due about Christmas thereafter; that Mathias then made a deed to Henry Irwin for the land; that Henry Irwin went into the possession of the land, and improved it; the notes given by Irwin for the land, were sued to judgment in a Justice's Court of Stewart county, in the name of Har-rell Hare, in 1840, or 1841, before William Fitzpatrick, J. P., and the land was levied on and sold as the property of Henry Irwin, under the said fi. fas. and others; and that long after he bought the land, Henry Irwin called on witness to write a deed to his son, William Henry Irwin, who was then a boy about ten years old, which witness refused to do, believing that Henry Irwin was trying to defraud his creditors, he being, at the time, embarrassed in his pecuniary circumstances; witness knows nothing of any deed to William Henry Irwin, nor of his grand-mother, Mrs. Corbitt, having paid for the land for him, and from his knowledge of Mrs. Corbitt's circumstances, he knows she did not have the means to pay $1,000 for the land; witness and William Henry Irwin are at law about some negroes, and there is a cool feeling between them.

William...