Rushin v. Ball

• Decision Date: 31 July 1852
• Docket Number: No. 73.,73.
• Citation: 11 Ga. 636
• Parties: William Rushin, plaintiff in error. vs. Shields & Ball, defendants in error.
• Court: Georgia Supreme Court

11 Ga. 636

William Rushin, plaintiff in error. vs. Shields & Ball, defendants in error.

No. 73.

Supreme Court of the State of Georgia

JULY TERM, 1852.

Claim, in Stewart Superior Court. Tried before Judge Iverson, April Term, 1852.

A fi. fa. in favor of Shields & Ball vs. G. H. Croxton, was levied on a tract of land in Stewart County, to which William Rushin interposed a claim. Upon the trial, the plaintiffs in fi. fa. offered in evidence, a copy deed from John Stanton to James Moore; to which plaintiff's counsel objected, on the ground that the probate thereof was not sufficient to authorize its registry; the subscribing witness swearing, " that he saw John Stanton sign and seal the deed, and for the purposes therein named; and that he also saw Duke Hamilton and W. A. Mott, as witnesses to the same." The Court admitted the deed, and this is the first error assigned.

Plaintiff in fi. fa. then proposed to read in evidence a copy of a deed from M L. Brown to G. H. Croxton, to which claimant's counsel objected, on the ground that the probate thereof, was insufficient to authorize its registry, the subscribing witness swearing, " that he saw M. L. Brown assign the within deed, and that E. D. H. assigned with him at the same time, as a subscribing witness." The Court admitted the deed, and this is assigned as error.

Plaintiff in fi. fa. then proposed to read in evidence an alias fi. fa. (under which the levy had been made,) issued by F. D. Wimberly, Clerk of the Inferior Court of said County, on the — day of July, 1846, in lieu of an original, alleged to have been lost; also, an order passed by the said Inferior Court, at its July Term, 1846, requiring the Clerk to issue an alias fi. fa., Counsel for claimant objected to this alias fi. fa. on the ground that a copy of the lost original should have been established, as provided by the Statute; and that the Inferior Court had no authority to order an alias fi. fa. issued. The Court overruled the objection, and this decision is assigned as error.

The claimant proved by one Daniel Matheson, that he, as Sheriff, in 1842, raised a large sum of money from the property of Croxton, under a certain fi. fa. against him, and that the owner and assignee of the fi. fa. now levied, notified him, as Sheriff, to hold up the money so raised, as he claimed it, under this fi. fa.; that he did so hold it up, and afterwards, by the instructions of the assignee, paid out the fund, ($ 80 or $100) to others. The Court, in its instructions to the Jury, charged them, " that forasmuch as the fi. fa. in favor of Shields & Ball was not levied, and did not raise and bring this fund into Court, but the same was raised under a junior fi. fa., the payment of the money by Matheson, under the instructions of the assignee of this fi. fa. did not amount to a payment or satisfaction pro tanto, of this fi. fa. To which charge counsel for claimant excepted, and has assigned the same as error.

Some time after the Jury returned, one of them came into Court with (he Bailiff', and stated to the Court, that he and his fellow Jurors disagreed as to whether the Shields & Ball fi. fa. had been levied at the time the money was raised, about which Matheson testified. Whereupon, the Judge told the Juror, that there was no evidence introduced, going to show that the execution of Shields & Ball had been levied, and brought the said fund into Court. To which proceeding by the Court, claimant by his counsel excepted, and has assigned error thereon.

B. H. Worrill, for plaintiff in error.

John A, Tucker and Harrison, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

William Shields and John F. Ball, comprising the firm of Shields & Ball, holding an execution against Gideon H. Croxton, caused the same to be levied on the south half of lot No. 7, in the first section and 33d district of what was originally Lee County, containing 202 ¹/₂ acres. The land was claimed by William Rushin. Plaintiffs in fi. fa. read in evidence on the trial, a duplicate plot and grant, from the State of Georgia, to one John Stanton, for the premises. They then offered and proposed to read a copy deed from John Stanton to James Moore, to the lot of land. Claimant objected to the testimony, on the ground that the probate was defective in this that, Henry B. Meshom, the subscribing witness, upon whose affidavit alone, the deed was admitted to record, did not testify to the execution of the instrument. He swore merely, that he saw John Stanton, the feoffer, sign and seal the conveyance, for the purposes therein named; and that he saw likewise, Duke Hamilton and William A. Mott, the other attesting witnesses, subscribe their names as such. He does not depose to the delivery of the deed. The Court overruled the objection, and permitted the paper to be read to the Jury. And this constitutes the first assingnment of error.

There can be no doubt, we apprehend, that where a deed is recorded, which is not required by law to be recorded, a certified copy from the records, would not be evidence under the Statute making certified copies from the record of deeds evidence.

The same result would follow, where the instrument was required by law to be recorded, but the record was actually made without authority. As for instance, by the laws of this State, a deed executed in the presence of, and attested by a Notary Public, Judge of the Superior Court, Justice of the Inferior Court, or of the Peace, and by one other witness, is authorized to be admitted to record. But suppose the registration was made upon the attestation alone of the Magistrate, would it be pretended that a certified copy of such a deed, the original beinglost, could be read in evidence in the Courts of this State? Most assuredly not.

Indeed, we hold the general principle to have gone to the entire extent, although there may be some respectable authority the other way, that an irregular registration of a deed, is not even notice. Heister vs. Fortner, 2 Binney, 44. Hotson vs. Britts, 3 Cranch, 140. De Witt vs. Moulton, 5 Shep. 418. Giddings vs. Smith, 15 Verm. 344. 1 Watts, 322. Tid. 31. 2 Conn. 527. 3 Day, 508. 2 Mason, 117. 10 Pick. 172.

But the precise question here is, whether the omission to state in the probate of a deed, that it was delivered, or...