Way v. Jarnold

• Decision Date: 30 June 1855
• Docket Number: No. 19.,19.
• Citation: 18 Ga. 181
• Parties: Wm. I. Way, plaintiff in error. vs. Richard J.Arnold, defendant in error.
• Court: Georgia Supreme Court

18 Ga. 181

Wm. I. Way, plaintiff in error. vs. Richard J.Arnold, defendant in error.

No. 19.

Supreme Court of the State of Georgia

JUNE TERM, 1855.

JUNE TERM, 1855.

Ejectment, in Bryan Superior Court. Tried before Judge Holt, April Term, 1855.

This action was brought by Way against Arnold. The former was the owner of a tract of land known as Silk Hope; the latter was the owner of a tract of land adjoining, known as Sedgefield. Both claimed title under Edward Pyncheon. The deed from Pyncheon to Way was dated 2nd April, 1844, and conveyed a tract of land " known as Silk Hope, bounded on the north by the Great Ogechee River; east by the lands of Richard J. Arnold, Esq.; south by Major George M. Waters, and west by Col. Lewis Morris, having such shapes, marks and boundaries, both natural and artificial, as is represented by a plot of re-survey, made the day of as by reference to said plot will more fully appear." No plot was attached.

On 8th January, 1845, Lewis Morris conveyed Sedgefield to Edward Pyncheon; and on 31st March, 1845, Pyncheon conveyed it to Richard J. Arnold. The dispute arose as to the dividing line between Sedgefield and Silk Hope.

On the trial of this cause, it appeared that Arnold, in order to obtain the testimony of Morris, had released him upon his warranty to Pyncheon. Plaintiff below offered in evidence the depositions of Edward Pyncheon, for the purpose of iden-tifying a plot of re-survey, made by Zara Powers, D. S. dated 27th February, 1829, as the plot referred to in the deed from Pyncheon to Way. Defendant\'s Counsel objected—1st. Because Parol evidence was inadmissible to identify this plot. 2nd. Because Pyncheon, being the warrantor of Way, and being released upon his liability as warrantor of Arnold, was an interested witness until released.

The Court below excluded the testimony on the first ground, without deciding the last; and to this decision plaintiff's Counsel excepted. Other exceptions were filed to other decisions, but all dependent on this, except the following:

One Hughes, the County Surveyor, made a plot of survey of the Silk Hope tract. All except one line, was based upon the re-survey excluded as above. The plot was admitted as to that line only. The Jury requested to have this plot in their room. The Court refused the request, and exceptions were filed.

On these exceptions error has been assigned.

Millen, for plaintiff in error.

WARD, for defendant in error.

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

This was an action of ejectment, brought by William J. Way, against Richard J. Arnold, to recover a few acres of land in Bryan County. The plaintiff and defendant are contiguous owners of two tracts, the one known as Silk Hope, the other as Sedgefield. They mutually bound each other— the former situated on the east and the latter on the west— and the suit between these parties, has originated in a dispute or difference as to the true line between these two plantations. It is admitted, and abundantly shown by the testimony, that an old canal or ditch, which runs from the hill to the creek, once constituted the dividing line between the rice-fields of the Silk Hope and the Sedgefield places. But it is insisted, that inthe course of the various conveyances which have been subsequently made, the original line has been changed and another substituted in its place. Confine the plaintiff to the ancient boundary, and the case is with the defendant. Establish the new line, beginning in 1844 and 1845, and Mr. Way is entitled to recover the premises in dispute.

As both plaintiff and defendant derive title from Edward E. Pyncheon, it is unnecessary to go back beyond their common grantor.

The first link in the plaintiff's chain of title, is the Sheriff's deed to Pyncheon, dated the 4th day of July, 1843, and conveying all of Silk Hope to the grantee, his heirs and assigns forever. To which no objection is made. The next is a deed from Pyncheon to Way, executed the 2d day of April, 1844, conveying Silk Hope and calling for the land of Col. Lewis Morris, (Sedgefield,) on the west, and described as " having such shape, marks and boundaries, both natural and artificial, as is represented by "a plot of re-survey made the—day of—, as by reference to said plot will more fully appear." The plaintiff next read in evidence, a deed from Lewis Morris to Edward E. Pyncheon, dated the 8th day of January, 1845, conveying the whole of the place known as Sedgefield. He then submitted to the Jury a deed to Sedgefield from Pyncheon to Arnold, dated the 31st day of March, 1845. Mr. Way then offered in evidence the testimony of Pyncheon, taken by commission, and particularly his answer to the second direct interrogatory, which is in the words following, to wit: To the second interrogatory, the witness answers—" The plot of re-survey, signed Zara Powers, D. S. and dated February 27th, 1829, and now shown to me, is the one by which I bought and sold Silk Hope." And the plaintiff moved the Court that the same might be admitted to prove that this was the plot referred to in the deed from Pyncheon to Way. To its admission, Counsel for defendant objected that it was parol proof, offered for the purpose of supplying the omissions in a deed, and that the identity of the plot could not be thus shown; and because, also, Pyncheon was an inter-ested witness. Whereupon, the Court excluded the testimony, not upon the ground that the witness was interested, but that the testimony was illegal. To which decision, Counsel for plaintiff excepted.

The plaintiff then offered in evidence the plot of re-survey, signed Zara Powers, I). S. together with the aforementioned proof, and moved the Court that the same might be admitted, to prove the locus in quo, or subject matter of the conveyance from Pyncheon to Way; and this being a dispute as to boundary, to ascertain what were the true boundaries of Silk Hope. To which being admitted in evidence, Counsel for defendant objected, and the Court excluded said testimony-Counsel for plaintiff excepting thereto.

The plaintiff then offered in evidence the said plot of re-survey, made by Zara Powers, D. S. and dated as aforesaid, and moved the Court that the same might be received as a muniment of title, and admissible before the Jury. To which being admitted in evidence, Counsel for defendant objected. And the Court, upon said objection being made, excluded the same, and Counsel for plaintiff excepted.

The said plaintiff then offered in evidence the testimony of William Hughes, County Surveyor of Liberty County, by commission, legally taken, accompanied by a plot of the dividing line between Silk Hope and Sedgefield plantations, drawn by witness, and annexed by witness to his interrogatories, and moved said Court that said testimony and plot might be received in evidence, to prove what were the true and correct, natural and artificial boundaries of Silk Hope plantation, and the true line of division between Silk Hope and Sedgefield plantations; and that witness derived his knowledge of the boundaries in a survey made at the instance of plaintiff and defendant, with the plot of re-survey mentioned above, and the title deeds of both parties placed by them in his hands, for the purpose of ascertaining said boundaries, and also to prove that the said plot of re-survey, signed Zara Powers, D. S. and dated as aforesaid, was a recognized plot of Silk Hope plant-ation; (a copy of which testimony and plot is hereunto annexed;) to the admission of which testimony and plot, so far as it relates to the boundary derived from the re-survey signed, Zara Powers, Counsel for defendant objected, upon the ground that witness derived his knowledge of these boundaries from a survey made in accordance with the plot of Zara Powers; and said plot being ruled out, this evidence and the plot herewith offered, must be also excluded; and upon said objection being made, the Court excluded said testimony and plot, and Counsel for plaintiff excepted.

The said plaintiff then offered in evidence such portion of said testimony, and the plot aforesaid, as referred to line run according to Mr. Arnold's deed, and no objection being made, the said testimony was received. (A copy of which is hereunto annexed.)

John P. Hines was then sworn as witness for plaintiff, who testified, that when Silk Hope plantation was owned by Lewis Hines, in 1839 or '40, a half acre on the island was always claimed and used as belonging to said plantation, and has always been so regarded by the subsequent owners; that the line of boundary, relative to the balance of the promises in dispute, was always a matter of difference between the owners of Sedgefield and Silk Hope; that the land could produce sixty bushels of rice per acre, and is worth twenty dollars per acre, per annum. Counsel for plaintiff then asked witness, whether he had not always known of a plot of re-survey of Silk Hope plantation, signed Zara Powers, D. S. and dated the 27th February, 1829, and whether the plot then shown him, was not that plot V To which question, Counsel for defendant objected, and the Court sustained said objection. Counsel for plaintiff excepted.

The cause being closed, and the Jury having been charged with the cause, the Jury retired; and having been absent some time, requested that the plot, drawn by William Hughes, and partly admitted in evidence, might be sent to them; Counsel for defendant objecting thereto, the Court refused their request, and Counsel for plaintiff excepted.

The whole of the errors assigned in this case, except the last, may be considered and disposed of together. Because, if the Court was right in refusing to admit the re-survey, as proven by Pyncheon, there was no error, of course, in excluding from the Jury said plot of re-survey; the testimony of Wm. Hughes proving the boundaries, both natural and artificial, of Silk Hope plantation, and the true line of division between Silk...