Weeks v. Hosch Lumber Co.

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN, J. (after stating the facts as above).
• Citation: Weeks v. Hosch Lumber Co., 133 Ga. 472, 66 S.E. 168 (Ga. 1909)
• Decision Date: 19 November 1909
• Parties: WEEKS v. HOSCH LUMBER CO. et al.

66 S.E. 168

133 Ga. 472

WEEKS v. HOSCH LUMBER CO. et al.

Supreme Court of Georgia

November 19, 1909

Syllabus by the Court.

Where in a certificate to a transcript of a record in the court of ordinary, the ordinary described himself as "ordinary and ex officio clerk of said court of ordinary of said county," and signed the certificate in the same manner this was a sufficient statement that the ordinary and the clerk were the same person to admit the transcript in evidence.

A special trust as to the sale and conveyance of land conferred by a will on three executors, cannot be executed by one of them selling and making a deed.

(a) Such a deed could not be upheld by parol evidence tending to show that the other two executors took no active part in administering the estate, and that the executor making the sale and conveyance was the managing executor.

(b) Where a deed is apparently offered as conveying title and rejected as invalid, if the person claiming under it desires to have it admitted as color of title in connection with evidence of possession thereafter to be offered, he should so tender it or call the attention of the court to the purpose of its offer as color of title.

Where in an action of ejectment, the defendant offered in evidence certain deeds, which were properly rejected when and as they were offered, and afterwards he offered evidence to show possession, but no color of title, and it alone was not sufficient to show prescription, and its admission could not have altered the result, ruling it out will not require a reversal.

Although evidence may have been admissible to show adverse possession at the time of the making of an administrator's deed to a purchaser of land, yet, where the same result of the case was inevitable, regardless of whether such evidence was admitted or not, its rejection will not cause a reversal.

Error from Superior Court, Colquitt County; R. G. Mitchell, Judge.

Ejectment by the Hosch Lumber Company and another against J. S. Weeks. Judgment for plaintiff's, and defendant brings error. Reversed.

An action of ejectment in the common-law form was brought by John Doe on the several demises of the Hosch Lumber Company, R. E. Davison as administrator de bonis non cum testamento annexo of the estate of James Davison deceased, C.J. Haden, Ella Martin Davison, James Davison, Mary Pearl Davison, and Temperance Estelle Davison, jointly and severally, against Richard Roe, casual ejector, and J. S. Weeks, claimant of title. The defendant pleaded the general issue, and also "that he and those under whom he claims have been in the open, exclusive, notorious, continuous, and bona fide possession of said land under written color of title." It appeared that both parties claimed under James Davison. One Davant, executor of Davison, made a quitclaim deed to Norman, and Norman conveyed to the defendant. Later an administrator de bonis non was appointed on the estate of Davison. He conveyed to Haden. Afterwards he made a deed reciting that the estate of Davison had been fully administered pursuant to the terms of the will, and all debts had been fully paid, and conveying to the devisees in the will "all the right, title, and interest in the real property of said estate that may yet remain in said estate," designating certain lots including the one now in suit. The devisees under the will of Davison conveyed to Haden. Between the dates of the two conveyances to him Haden conveyed to the Hosch Lumber Company. On the first trial the judge directed a verdict for the defendant. The judgment was reversed, this court holding that the deed from Davant, one of the three executors of Davison, was not authorized by the will, which provided for the testator's wild lands (including the lot in dispute) to "be sold at such time and place as may be to the best interest of my estate, at the discretion of my executors and the ordinary of this [Greene] county." Hosch Lumber Co. v. Weeks, 123 Ga. 336, 51 S.E. 439. On the second trial the plaintiffs made out a prima facie case. The defendant tendered in evidence the deed from Davant, executor of Davison, to Norman, being a quitclaim deed. Objection was made to this on the ground that it was void, and that it was the personal deed of Davant. The defendant then offered certain depositions tending to show that Davant was the active executor of the estate of Davison, and, with the consent of the other two executors, managed the affairs of the estate while all three were in office, and so continued to act after Overton resigned until he himself resigned; that Overton and Mrs. Davison did not have any active management of the estate, but left the business of it entirely to Davant, who in the year 1882 (in which year the deed to Norman was dated) made all the returns and signed all the papers connected with the estate; that about 1896 or 1897 Haden entered into correspondence with the son of Mrs. Davison, making inquiry about the lots of land owned by his father; that the younger Davison thought the title valueless on account of certain transactions with one Newsome and one Sawtell, the mismanagement of the estate, and the lapse of time; that Haden thought the deed from Davant to Norman void; that Davison explained the details of certain transactions between his mother and one Newsome and Sawtell; and that finally Haden purchased and paid $200 or $250, taking a deed from the administrator de bonis non, but causing to be inserted in it a consideration of $1,000. Depositions of Norman were also offered to show that he bought the land from Davant as executor of Davison, paid the price stated in the deed, had no notice of any kind to indicate that the deed was not good, paid full value, and believed that it was effective to pass title out of the estate of Davison, deceased, and that he afterwards sold the land in dispute to Weeks for $125. The court rejected the deed from Davant, executor, to Norman, on the ground that it was void as an executor's deed, and also rejected the evidence offered in support of it as above stated. Defendant then offered in evidence a deed from Norman to Weeks, covering the lot in dispute. This was rejected on the ground that it was not connected with any person having title; no title being shown in Norman the grantor. Defendant offered in evidence a turpentine lease, dated January 8, 1895, from Weeks to one Horne, conveying all the turpentine timber on certain lots, including the one in dispute, to be used, worked, and operated for the purpose of manufacturing rosin and spirits of turpentine from the 8th day of January, 1895, for the full term of three years from the date of boxing. It recited a valuable consideration, and was attested and recorded. This was rejected on the sole ground that no title had been shown in Weeks. Defendant then offered to prove by Horne and Weeks that, immediately after the execution of the turpentine lease, they began boxing and working for turpentine purposes all the pine trees on the land in dispute; that it was covered entirely and completely with a growth of pine trees capable of being worked for turpentine purposes, except a small, unimportant portion thereof; and that they were in possession of the lot, boxing, hacking, and otherwise working all the trees thereon capable of being worked for turpentine purposes, and during that time were in full possession of the land as the manufacture of turpentine and naval stores from trees can give possession. This evidence was rejected by the court. The defendant rested. The court directed a verdict for the plaintiffs, and the defendant excepted.

John A. Wilkes and Shipp & Kline, for plaintiff in error.

Edwin L. Bryan and E. K. Wilcox, for defendants in error.

LUMPKIN, J. (after stating the facts as above).

1. In making out their title the plaintiffs introduced in evidence a certified copy of the letters of administration de bonis non cum testamento annexo on the estate of Davison, deceased issued to R. E. Davison in 1894, and also a certified transcript of the application of Davison, administrator de bonis non, for leave to sell the wild lands at public or private sale, and of the order of the ordinary granting it. The certificate to each of these transcripts was in similar form. It recited that: "I, James H. McWhorter, ordinary and ex officio clerk of said court of ordinary of said county do hereby certify that the above and foregoing copy," etc. It concluded with the words, "Given under my hand and seal of office, this first day of April, 1903," and was signed: "James McWhorter, Ordinary and Ex Officio Clerk Court of Ordinary of Greene County, Georgia." Objection was made to these transcripts on the ground that it did not appear that the ordinary had no...