Williams v. Rawlins

• Decision Date: 31 August 1861
• Citation: 33 Ga. 117
• Parties: Amos A. Williams, plaintiff in error. vs. Samuel Rawlins, defendant in error.
• Court: Georgia Supreme Court

33 Ga. 117

Amos A. Williams, plaintiff in error. vs. Samuel Rawlins, defendant in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1861.

Ejectment. In the Superior Court of Catoosa county. Tried before Hon. D. A. Walker. November Term, 1860.

This was an action brought, on the 2d day of March, 1853, in the name of John Doe, on the several demises of Samuel Oliver, Dudley Bonds, and Samuel Rawlins, against Richard Roe, casual ejector, and Amos A. Williams, tenant in possession, for the recovery of lot of land No. 48, in the 28th district of the 3d section of originally Cherokee, but then Catoosa county.

The writ in the case also contained a count for mesne profits, and was served upon the defendant, Amos A. Williams, by leaving a copy of the same at his most notorious place of abode, and by putting a copy upon the door of a cabin on the premises sued for.

The defendant pleaded the general issue, the Statute of Limitations, and adverse possession of the land for seven years before the commencement of a former suit, which terminated in defendant's favor, more than six months before the commencement of this action.

On the trial, plaintiff introduced in evidence a grant from the State to Samuel Oliver, for the premises in dispute, dated January, 1837, which was drawn from the custody of the defendant by notice to produce the same, under the rules of Court; also, a deed from Samuel Oliver to Dudley Bonds, for the same land, dated 14th January, 1842, and registered November 9th, 1842; also, a deed from Dudley Bonds to Samuel Rawlins, for the same land, dated 25th February, 1843, and registered June 12th, 1843.

Upon the question as to when the defendant, Amos A. Williams, entered upon the land in dispute, an unusually large number of witnesses testified, those for the plaintiff asserting that the possession began in the summer of 1838, and those for the defendant, that such possession commenced in the summer of 1837.

The plaintiff introduced an exemplified copy from the records and dockets of the Superior Court of Walker county, showing that, on the 10th day of September, 1844, an action was commenced in the name of John Doe, on the demises of Samuel Oliver and Samuel Rawlins, against Richard Roe, casual ejector, and Amos Ashley Williams, tenant in possession, for the recovery of the land in dispute, which was then situate in the county of Walker, the county of Catoosa not having been formed; that the defendant was served with process, in that case, on the 18th of September, 1844; that at April Term, 1846, the defendant confessed judgment to the plaintiff for the premises in dispute, with costs of suit, reserving the right to appeal; that an appeal was entered, and that the case continued in Court until October Term, 1852; an entry was made by the presiding Judge on the bench docket, "Dismissed." This exemplification was received and read in evidence, without objection.

It was also shown, by the proof, that the defendant claimed to be in possession of the land in 1852, and that he had rented the premises to a man by the name of Lively, who, by agreement with defendant, was to retain secret possession until after the expiration of six months from the dismissal of the suit in Walker county. This arrangement was made to mislead and deceive the plaintiff and his counsel, and induce them, if possible, to neglect instituting a second suit until after the expiration of six months from the dismissal of the first suit, and thus perfect a statutory title in the defendant. This contract between the defendant and Lively was in writing, and, by its terms, Lively was not to take open possession until the said six months had expired.

There was some proof submitted as to mesne profits, but as none were recovered, the testimony need not be detailed in this statement.

The defendant, after proving its execution, read in evidence a bond executed by W. W. Williams, in DeKalb county, Georgia, dated December 30th, 1836, conditioned to "make, or cause to be made, a good and sufficient warrantee title" for the land in dispute to the defendant, Amos A. Williams. The defendant also proved that he paid to W. W. Williams one hundred dollars of the purchase-money the day before said bond was executed, and that, in the year 1844, he paid the balance of the purchase-money, two hundred and fifty dollars, in a young mare, or filly.

He also offered to prove, by his brother, W. W. Williams, that the latter had previously bargained with Samuel Oliver for this land, and paid him one hundred dollars of the purchase-money, and gave his note or notes for one hundred dollars more.

This testimony was rejected by the Court, upon objection being made thereto.

Pending the trial, the plaintiff offered in evidence-the depositions of several witnesses, taken by interrogatories and commissions, to which counsel for defendant objected, on the ground that Lawson Black, Esq., an attorney at law of the Court, acted as one of the commissioners in taking the depositions. The Court overruled the objection, and admitted the depositions, Mr. Black being in Court, and the Court proposing to allow defendant's counsel to prove that he was counsel in the case, or otherwise interested in its result.

The plaintiff offered in evidence the depositions of a witness by the name of Dickey, to the reading of which the defendant's counsel objected, because the signatures of the witness and of the commissioners seemed to be in one and the same handwriting.

The Court overruled the objection, and...