Stanford v. Mangin

• Decision Date: 31 May 1860
• Citation: 30 Ga. 355
• Parties: STANFORD. v. MANGIN et al.
• Court: Georgia Supreme Court

30 Ga. 355

STANFORD. v. MANGIN et al.

Supreme Court of the State of Georgia

MAY TERM, 1860.

Ejectment, in Habersham Superior Court. Tried before Judge Hutchins, at April Term, 1860.

This was an action of ejectment brought by John Doe ex dem., William H. Hangin and Andrew J. Nichols, against Richard Roe, casual ejector, and John R. Stanford, tenant in possession, for the recovery of five acres of land, more or less, being a portion of lot No. 19, in the 10th district of Habersham county, known as "The Island." Both parties claim under Benjamin Vaughn, the former owner of the land; the plaintiff, under a deed from Vaughn to William, H. Mangin, dated 29th September, 1838, conveying "all that part of lot No. 19, in the 10th district of Habersham county, situate, lying and being on the west side of the Soquee river; containing 5¹/₂ acres, more or less, " etc. The defendant claimed under a deed from the executors of Vaughn, dated 5th July, 1839, conveying to John R. Stanford "all that tract or parcel of land situate, lying and being in 10th district of said county, known, as part of lot No. 19 in said district, bounded by and having the following courses and distances, " etc.; describing the same particularly, and containing 186 acres, more or less, being the balance of lot No. 19, not before conveyed to Mangin, and situated on the east side of said river Soquee, and to the middle of said river.

Plaintiff claimed that the land in controversy, now an island, was, at the time of the conveyance and execution of the deed by Vaughn to Mangin, in 1858, on the west side of the river, and embraced in said deed from Vaughn to Mangin. Defendant claimed that at the time of his purchase of all the Vaughn land on the east side of the river, and long before, the land in dispute was an island formed by two channels of said river, the principal run or channel being on thewest side of said island, and that it was therefore included in his deed from the executors of Vaughn. He further relied on the Statute of Limitations.

At the time the Court allowed the plaintiff to amend his declaration by laying a demise from Peyton L. Wade, Man-gin's vendee, without striking out the demise from Mangin, who had been dead long before the commencement of the suit, but holding that no recovery could be had on the demise from Mangin.

When the depositions of John W. H. Underwood were offered to be read on the part of plaintiff, defendant objected thereto, on the grounds:

1st. That he was one of the executors of the estate of James R. Wyley, deceased, under whom plaintiffs claimed; that his testimony is given in support of his own deed made as executor of Wyley to Nichols.

2d. Because he is one of the legatees of Wyley's estate, and therefore interested.

3d. Because, in his answer to the 4th cross-interrogatory, he gives reasons not warranted by the conversation referred to, and in his answer to the 5th cross-interrogatory, he gives his evidence argumentatively, and answers more than he is asked, and gives his opinion as to the law of the case, citing his authority for it.

4th. Because he testifies to a conversation held with defendant while he was attorney for Wyley, and employed to bring suit for the very premises now in dispute.

Plaintiff executed and tendered a release to Underwood, and the Court understanding that no further objection was made as to the competency on the score of interest, overruled the objection and let in the testimony. To which ruling defendant excepted.

Defendant also objected to the introduction in evidence of a deed from Mangin to Wade, offered by plaintiff, upon the grounds:

1st. That said deed did not state the county in which it was executed, and ought not to have gone to record without proof of when it was executed; and 2d. Purporting to be executed before a Notary Public, his notarial seal should have been attached, and the county of his residence made to appear.

The Court overruled this objection, and defendant excepted.

The evidence being very voluminous, and no motion being made for a new trial, on the ground that the verdict was contrary thereto, it is deemed wholly unnecessary to insert it here.

The testimony being closed, the Court charged the jury, that the real question in the case was, Where was Soquee river at the time Vaughn made the deed to Mangin? That deed conveys all of Lot No. 19, lying northwest of the river to Mangin. The deed from; the executors of Vaughn conveys to defendant all of Lot No. 19, on the southeast side of the river, or all of that lot which had not been conveyed to Mangin. These two deeds make the river the line between plaintiff's and defendant's land. Then, where was the river? This is a question of fact for the jury; if you believe from the evidence that the river ran east or southeast of the land in dispute, at the time the deed to Mangin was executed, and that his title has passed to the plaintiff, and that defendant is in possession, then the plaintiff is entitled to recover; the deed from Vaughn to Mangin being admitted to be older than the one from his executors, under which defendant claims. The defendant, however, denies that the river run on the southeast side of the disputed premises at the date of Man-gin's deed, but insists that the main channel was on the northwest side of it, and that his boundary extends to the bank of that channel, and if you believe this, you should find for the defendant.

The defendant further relies on the Statute of Limitations, and that he has had possession of the land in dispute more than seven years prior to the commencement of this suit, and prior to the passage of the Act of 1852. If you believe that defendant possessed and occupied the land under a claim of right, openly, notoriously and continuously for seven years, prior to the Act of January, 1853, or that he held and claimed it seven years prior to the commencement of this suit under color of title, then his title is good, and he is protected by the Statute of Limitations, and you should find for him.

The defendant requested the Court to charge that plaintiff's boundary did not extend to the middle of the river, or beyond the northwest bank or margin of this small stream. It is admited that Soquee...