Russell v. Slaton , 25 Ga. 193 ( 1858 )

By the Court.

Benning, J.

delivering the opinion.

[1.] Was the Court right in refusing to require the Sheriff to execute a deed to JohnT. Davis? We think so, and. for the reasons given by the Court.

Was the record of the claim case, admissible under the proof which the defendant preposed to make. The Court held, that it was not, and we cannot say, that, in this, the Court erred.

The title, according to the plaintiff's proof, was standing, at the time of this decision, in William B. Lambeth and Drury May, not in Slaton. It was not afterwards carried by the proof as far as Slaton, but only as far as Joseph Lambeth. Say, then, that William B. Lambeth and Drury May werej when the decision was made, to be considered as the real plaintiff's in the ejectment, were they bound by the judgment in the claim case ? They were not parties to that case; nor were they privies, so far as appears. They therefore, were not bound by the judgment in that case. Slaton was the party in that case; and although it might be true, that they let him use their title in support of his claim, still, that did not make them bound by the judgment in the case. If Slaton had gained the case, they might have sued him on their title, their having let him thus use it, to the contrary notwithstanding. So, although it might be true, that Slaton was the party bringing the ejectment; and that he was bringing it for his own “ interest,” yet, that did not affect the validity of their title, or show that they were bound by the judgment in the claim case. Permitting Slaton to do this, was their business.

[2.] We think, that William B. Lambeth and Drury May were not bound by the judgment in the claim case, and therefore, that the judgment in that case, was not admissible against them.

If the defendant had carried the title, fey proof, down to Slaton, and left it in him, then, the case would have been, like that of Dickerson vs. Powell in 21 Ga. 143.

I remark for myself, in relation to this last case, that I have-no remembrance of the fact, that a decision of the point, as to the admissibility of the judgment in the claim case, was made. I do remember well, that Mr. Lyon rested his “case on the other point, and expressed indifference as to this.’* And the ground taken by the lower Court in rejecting the judgment, was, that the judgment was a nullity, not that the case was an action of ejectment, and that in actions of ejectment, such a judgment, even if good, would not be admissible. I simply say, therefore, for myself, that 1 think this question ought still to be considered an open one.

The Charges.

The charge, “ that the Sheriff’s sale made before the grant issued, did not pass a legal title to Davis, but only a color of title,” is supported by the lessee of Garlick vs. Robinson (12 Ga. R.)

But even if this charge was wrong, (and I am disposed to think that it was,) the error is not one that would justify the granting of a new trial. Both parties really claimed under Davis, and the title which the plaintiff made out under him. was a better one, than that made out under him, by the defendant. So that, the plaintiff is entitled to the verdict, even admitting, that Davis acquired Mr. Carcel’s title.

For the same reason, the charge, “that the only question in the case, was the statute of limitation,” is not such an error, if one at all, as to call for a new trial.

The charge, “that if Davis abandoned the possession to May and Lambeth, that is such an interruption in his possession as would defeat his statutory title” was manifestly right. If such was the case, the title would ripen, not, in Davis, but, in Lambeth and May.

[3.] The charge, ‘(that if Davis, after holding seven years, then voluntarily abandoned possession, it would destroy his statutory title,” was also right, we think. If such was the ease, the presumption would be, that he had never been holding adversely, but had all the time, been holding in subordination to the true title.

It was not proved, that there were any creditors of Davis at the time when he abandoned the land, if he did abandon it, therefore, the request was not justified by the facts.

Upon the whole, we are not prepared to say, that there ought to be a new trial.

Judgment affirmed.