Thrower v. Wood

• Decision Date: 31 July 1874
• Parties: Martha F. Thrower, plaintiff in error. v. Amanda E. Wood,defendant in error.
• Court: Georgia Supreme Court

53 Ga. 458

Martha F. Thrower, plaintiff in error. v. Amanda E. Wood, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Laws. Legitimation. Presumption. Estoppel. Deeds. Before Judge Hopkins. Fulton Superior Court. October Term, 1873.

*Amanda E. Wood intstituted proceedings against Martha F. Thrower, as tenant in common with her, for the partition of a lot of land in the county of Fulton, claiming a title to one-sixth undivided interest in the same. The respondent objected to said partition, claiming title to the entire property.

1st. The petitioner introduced a deed from J. F. Trout to Thomas A. Lyon and Warner Lyon, dated August 15th, 1852, conveying to them, as tenants in common, a portion of the lot of land described in the plaintiff's petition.

2d. A deed from Thomas S. Baker, John S. Wilcox and Charles Baker, to Thomas A. Lyon and Warner Lyon, conveying to them, as tenants in common, the remaining portion of said premises, dated May 16th, 1855.

3d. A deed of gift from Warner Lyon to Thomas A. Lyon, Levi Jackson Lyon, and Thomas A. Lyon, as trustee for Martha F. Lyon, conveying to them a one-half undivided interest in said lot of land, "for and in consideration of the natural love and affection which he, the said Warner Lyon, hath and beareth to and for his said children, Thomas A., Levi Jackson, and Martha F. Lyon." This is the only consideration expressed in said deed. The conveying words are, "hath given, delivered and conveyed, and by these presents doth give, deliver and convey." The deed is dated December 6th, 1855, and was recorded December 17th, 1855. The aforesaid three deeds were produced upon the trial by the respondent upon notice from the petitioner.

4th. An agreed copy of the will of Thomas A. Lyon, in which he gives and bequeaths all of his property, both real and personal, to Martha F. Lyon, after reserving enough to pay his just debts and funeral expenses, during her life, and then to her children. The above will was properly executed December 15th, 1857.

5th. A deed from John T. Jinkins to Amanda E. Wood, the petitioner, dated February 25th, 1871, conveying to her all his right, title and interest, to-wit: the undivided one-third of the one-half of the lot of land aforesaid. 6th. A deed from T. K. P. Worthington and Mary Jane *Northcut to Amanda E. Wood, the plaintiff, conveying to her all their right, title and interest to the said lot of land, dated November 21st, 1870.

7th. The answers of Mary Kilpatrick to interrogatories as follows:

I knew Levi Jackson Lyon; I knew Elizabeth Worthington; I have been informed and believe that Levi Jackson Lyon is dead; I do not recollect when he died; I believe he died during the war—shortly before the close of the war; he was single at the time of his death; he had two sisters and one brother living at the time of his death; the name of his brother was Thomas; the name of one sister was Jane, who was married at the time to William Northcut; the name of the other sister was Charlotte, who was married at that time to Thomas Jinkins; Charlotte has died since the death of Levi Jackson Lyon; I forget the date of her death; the husband of Charlotte, Thomas Jinkins, was living at the time of the death of Charlotte, and is living now, to the best of my knowledge and belief; Levi Jackson Lyon was my nephew; his mother was my sister; both his father and mother are dead; his father's name was Jacob Worthington; he died in the Mexican war—I forget the year; his mother's name was Elizabeth Worthington; she died about ten or twelve years ago, after her husband died; I forget when Levi Jackson Lyon died; to the best of my knowledge and belief he was twenty or twenty-one years old; he was not married at the time of his death.

The petitioner here closed. The respondent first read in evidence the answers of Rachael S. Robertson and Mary M. Robinson to interrogatories as follows:

Mary M. Robinson knows Amanda Wood and Thomas Thrower, and Rachael S. Robertson knows Thomas Thrower; do not know the other parties; they both knew Levi Jackson Lyon, and from a strong family resemblance, believe that he was Warner Lyon's son. All they know, in addition to the above, going to show he was Warner Lyon's son, is that Warner Lyon brought him to the house of Rachael S. Robertson, *one of the witnesses, paid his board, clothed him, and sent him to school.

Cross-examined: They first became acquainted with Levi Jackson Lyon in 1847 or 1848. They were not acquainted with Jacob Worthington nor Elizabeth Worthington; neither were they present when the said Levi Jackson Lyon was begotten and born. Neither witness knows of the death of Jacob Worthington, nor of the death of Levi Jackson Lyon's mother. Both witnesses think Levi Jackson Lyon died in 1856 or 1857. Both answer they were not acquainted with Jacob or Elizabeth Worthington. They did not know anything of Jacob and Elizabeth Worthington living together, nor about Jacob Worthington'svolunteering in the Mexican war, nor about his dying there. All they ever heard Warner Lyon say about the parentage of Levi Jackson Lyon was subsequent to the Mexican war, and all they ever knew him to do for said Levi Jackson Lyon, was subsequent to said war, which was in 1847 or 1848, at the time the said Warner Lyon brought him to the house of witness, Rachael S. Robertson.

2d. The answers of Elizabeth Pruitt to interrogatories, as follows: I know none of the parties. I was acquainted with Jacob and Elizabeth Worthington. Said Jacob was a clever, sober man, until his wife, Elizabeth, conducted herself as she did. I know nothing myself, except that I have seen her and Warner Lyon go into the woods together and come out again. Does not know what they did. Have seen him go to her house a few times after she and her husband parted. This going to the house was after Levi Jackson Lyon was born. She knew them both fifteen or twenty years. Knew him in Walton and Campbell counties. They were married in Campbell. She heard said Elizabeth Worthington admit that Warner Lyon was the father of Levi Jackson Lyon, sometimes in earnest and sometimes in jest. Warner Lyon treated the child as his own. Said Elizabeth Worthington was under a very bad character. She was a dissipated woman. She had been separated from her husband about a year or more *when her last child was born. Has heard them dispute and quarrel about Warner Lyon. She was not a witness in the effort of Elizabeth Worthington to get a land warrant. Was applied to but declined. Cross-examined: Elizabeth and her husband, Jacob Worthington, were living together when Levi Jackson Lyon was begotten and born, but they separated before he went off to the Mexican war. Does not know how long that was after the birth of the said Levi Jackson Lyon. All that she has stated she heard from others, except their separation, going into the woods together and quarreling, which she heard and saw herself. Has not stated that Jacob Worthington was not the father of Levi Jackson Lyon, for she does not know. Has no personal knowledge that any person had sexual intercourse with the said Elizabeth Worthington while she and her husband were living together.

3d. The depositions of W. H. Kilpatrick, as follows: I knew nothing of the relation, friendship, intimacy and connection which existed between Warner Lyon and Elizabeth Worthington; Elizabeth Worthington is my wife's sister; the character of Elizabeth Worthington, about the time Levi Jackson Lyon was got and born, so far as I know, was as fair as that of any poor people; Warner Lyon took the child and put him to school; Jacob Worthington and his wife did not separate until he went into the army, so far as I know; I think the child was running about when he went into the army.

Cross-examined: I think Worthington and his wife lived together as man and wife until he went to the army, about the time Levi Jackson Lyon was begotten. Worthington was generally about home, and lived with his family until he went to the army.

4th. The depositions of W. M. Butt, as follows: I knew Levi Jackson Lyon, and his mother, Elizabeth Worthington, about the time said Levi Jackson Lyon was begotten and born. I livedwithin one mile of them, at Pine Mountain, in Carroll county, Georgia. I knew Warner Lyon, and he *resided nearer to Elizabeth Worthington than I did. Warner Lyon boarded said Levi Jackson Lyon at my house, and paid his board.

Cross-examined: Jacob and Elizabeth Worthington lived together as man and wife about three years before the birth of Levi Jackson Lyon, and up to the time that it was understood said Jacob went to the army, which was some time in the fall or summer of 1847. Said Jacob was usually about home about the time that Levi Jackson Lyon was begotten.

5th. The answers of Mary Kilpatrick to interrogatories, as follows: She knows Amanda Wood and Thomas Thrower; does not know Martha Thrower; she was acquainted with Elizabeth Worthington from the time of her birth until her death, which was about thirty years, from 1830 to 1860; she was her sister. She knows nothing of the conduct of Elizabeth Worthington with Warner Lyon about the time Levi Jackson Lyon was begotten and born, except that she saw Warner Lyon at her house occasionally. She was living with her husband, Jacob Worthington; knows nothing going to show that Warner Lyon was the father of the child. Never heard said Elizabeth admit that Warner Lyon was the father of the child; but when she came to see witness, the latter reproached her about the rumors about her. She replied that "want leads and the devil drives." Does not know that Warner Lyon ever treated the boy as his child; knows that he gave the boy a few clothes, i. e., a suit or two. There was a disagreement between said Elizabeth and Jacob, her husband, about the time Levi Jackson Lyon was born, about the rumors of intimacy between said Elizabeth and Warner Lyon; does not know how long they lived together afterwards,...