Williamson v. Mosley

• Decision Date: 28 February 1900
• Citation: 35 S.E. 301,110 Ga. 53
• Parties: WILLIAMSON v. MOSLEY.
• Court: Georgia Supreme Court

35 S.E. 301

110 Ga. 53

WILLIAMSON

v.MOSLEY.

Supreme Court of Georgia.

Feb. 28, 1900.

REAL ACTIONS—EVIDENCE!—ANCIENT INSTRUMENTS.

1. If A conveyed land to B. by a deed, and the latter executed upon it a transfer purporting to convey the title back to A., and retained possession of the paper, and subsequently conveyed the land to O., this"transfer" was not admissible in evidence as an ancient docu-ment against one claiming under C, unless shown to have come from the possession of A., or some one claiming under him by virtue of the conveyance executed by him after the date of such transfer.

2. The evidence was sufficient to support the verdict.

(Syllabus by the Court.)

Error from superior court, Emanuel county; P. E. Seabrook, Judge.

Action by C. P. Mosley against Solomon Williamson. From a judgment in favor of plaintiff and from an order denying a new trial, defendant brings error. Affirmed.

Williams & Williams and Daley & Hall, for plaintiff in error.

Geo. M. Warren and Jas. K. Hines, for defendant in error.

LEWIS, J. This was a complaint for land brought by C. P. Mosley against Solomon Williamson in Emanuel superior court. To the petition the plaintiff attached an abstract of his title, which was as follows: (1) Deed from Ezekial Clifton to David B. and George Smith; (2) deed from D. B. and George Smith to Math. Mosley; (3) deed from Matthew Mosley to William Mosley, dated 5th day of April, 1862; (4) deed from William Mosley to C. P. Mosley, dated 31st day of March, 1894. To this petition defendant answered, claiming that he owned the land, and denying any title whatever in the plaintiff. The jury returned a verdict for the plaintiff; whereupon defendant made a motion for a new trial, which was overruled, and on this ruling he assigns error in his bill of exceptions.

1. One ground of complaint alleged in the motion is that the court erred in excluding from the evidence a written transfer entered on the deed from Matthew Mosley to William Mosley; this transfer being executed on November 9, 1806, and attested by two witnesses. It relinquished all right and title of William Mosley to the lands described in the deed unto Matthew Mosley in consideration of the sum of $200. The transfer was offered by defendant to show title out of William Mosley, under whom the plaintiff claimed, but objection to its admission was made on the ground it did not appear that the same was ever delivered, which objection was sustained by the court. It is insisted by counsel for plaintiff in error that this transfer showed title out of William Mosley, who was the grantor of plaintiff, C. P. Mosley, and that, being an ancient document over 30 years of age, it should have been admitted in evidence. There is no question made on its admissibility, so far as proof of its execution is concerned, but the point is that there is no evidence whatever of its delivery. We think the objection well taken. It appears from the evidence that the deed came from the possession of William Mosley. There is no testimony whatever that Matthew Mosley, the transferee, ever held the transfer at all, or was ever in possession of the land conveyed by it Section 3610 of the Civil Code declares: "A deed more than thirty years old, having the appearance of genuineness on inspection, and coming from the proper custody, if possession has been consistent therewith, is admissible in evidence without proof of execution." In this case the transfer did not come from such custody as to show title out of the transferror, or a delivery by him, and the possession of the premises after the execution of the transfer has been entirely inconsistent therewith. We think the section of the Code cited controls the question. In Long v. Lumber Co., 82 Ga. 628, 9 S. E. 425, it was decided: "No preliminary proof being offered as to the deed coming from the proper custody, etc., it was not admissible as an ancient document, though it may have been more than 30 years old." See, also, Swicard v. Hooks, 85 Ga. 580, 11 S. E. 863; Maddox v. Gray, 75 Ga. 452; Civ. Code, § 3599; Harrell v. Culpepper, 47 Ga. 635 (Syl., point 2).

2. The only other ground to consider in the motion is that the verdict is contrary to law and evidence. It appears from the brief of evidence in the record that the deed from Clifton to the Smiths, covering the land in dispute, was made in 1855. The Smiths went into possession and remained in possession until 1859, when they conveyed the land to Matthew Mosley, who took possession and held the same until conveyed to William Mosley, in 1862. William Mosley went to the war in 1862, and returned when the war ended, in 1865, his family living on the land in...