Beverly v. Burke , 9 Ga. 440 ( 1851 )

By the Court.

Lumpkin, J.

delivering the opinion.

This was an action of ejectment, brought by John Burke against Joseph C. Beverly and William McBride, to recover a part of lot of land No. 67, in what was originally the 9th district of Fayette County. The plaintiff relied upon a statutory title.

[1.] He tendered in evidence, a bond for titles from Henry Reeves to Thomas Steel, under which he claimed. Counsellor the defendant objected to the introduction of this paper without proof of its execution. The plaintiff relied on its registration, and the Court admitted it to be read, as color of title.

There is no law authorizing this private writing to be recorded. The fact of registration does not entitle it, therefore, to be received in evidence for any purpose, without proof of its execution. Had this instrument been thirty years old, and testimony adduced that it had been acted upon, or that the obligee took possession of the premises in dispute under it; or had it been produced by the adverse party, pursuant to notice, the defendant also claiming an interest under it, no proof of its execution would have been required.

The plaintiff next offered in evidence a Sheriff’s deed to the land, to which defendant’s counsel objected, on two grounds—

1st. Because the executions under which the property was s'old, were not produced.

2d. Because the deed conveyed the entire tract, part of which was situated in Campbell County, and a part in Fayette; and it was insisted, that the Sheriff of Campbell had no authority to sell land in Fayette.

The Circuit Judge admitted that the deed conveyed no title to the land in Fayette, but held, that it was good to show color of title to the whole.

[2.] What is meant by color of title ? It may be defined to be a writing, upon its face professing to pass title, but-which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law.

The very fact of setting up a statutory title, excludes the idea of a rightful or legal title. The length of the possession, and its nature and character, are the only tests.

[3.] In Jakcson vs. Ellis, (13 Johns. Rep. 120,) the Court said, “ That it had been repeatedly ruled, that an entry under color of title is sufficient to constitute an adverse holding. It is not necessary for this purpose, that the title under which such entry is made,, should be a good and valid title.” In Clapp vs. Bornaghann, (9 Cowen, 530,) Ch. Jones says, “ Though the title of an adverse possession be clearly defective, yet the true owner must enter within twenty years, (in Georgia within seveii,) or he is barred his entry.” And in Jackson vs. Woodruff, (1 Cowen, 276,) Woodworth, Justice, says, “ If the title is bad, it is of no moment.” It is needless, I presume, to multiply authorities to this point. They all speak the same language, and fully sustain the decision of the Circuit Court.

[4.] Counsel for the defendant interrogated a witness, (Holcomb,) as to whether the buildings erected upon the land by the defendant, were not worth as much or more than the rent ? Plaintiff’s counsel objected to the question, upoh the ground that the defendants were trespassers, and as such, were not allowed to set up the value of their improvements against the mesne profits. The Court sustained the objection, and refused to permit the witness to testify.

Under certain circumstances it might be proper to allow proof as to improvements, even when made by acknowledged trespassers. If, for instance, the profits of tire premises have been increased by repairs, it is proper for the Jury to take into consideration these repairs, and to diminish the profits by them, but not below the amount which the premises would have been worth without such repairs. Beyond this, perhaps, it would not be proper to go in favor of trespassers; for it would be against all principle to allow a trespasser to make the person trespassed against liis debtor, for improvements made without his consent and against his will, or to suffer him to set them off against damages to which he has justly subjected himself by reason of his trespass. This would be worse than permitting him to set-off one trespass against another. It would be suffering him to justify or excuse one trespass, by proving that he had committed another — for the act of improving is itself a trespass.

[5.] But the complaint in this exception is, that the Court, for the purpose of excluding Holcomb’s testimony, assumed that the defendants were trespassers, a denial of which constituted the gist of their defence, and was certainly a question of fact to be submitted to the Jury, under the direction and opinion of the Court, as to the law which the evidence before them might involve. 2 Wash. C. C. Rep. 165. 8 Dana, 65, 66.

[6.] The defendant’s counsel offered in evidence, the copy of a deed from Henry Reeves to Edmund Baughan, to the lot of land in controversy, which had been duly established in Fayette Superior Court, in lieu of the lost original, and recorded in Fayette Superior Court. This copy deed was rejected on the ground, that the original deed not having been recorded in Fayette, it was necessary that the execution should be proven by the subscribing witnesses. There can be no doubt that when a copy deed is established, that it is to be treated as the original, for all purposes whatsoever.

[7.] But here the original deed was never recorded in Fayette County. If produced, it could not be read in evidence, without proof of its execution. The copy, therefore, could be entitled to no greater privilege.

[8.] The fact that it was recorded in the minutes of Fayette Superior Court, in the course of the proceeding which was instituted for its establishment, did not dispense with the statutory requirement of being registered by thé Clerk of the Superior Court of Fayette County, in the book kept by him for the registration of deeds.

[9.] The defendant’s counsel offered in evidence, the exemplification of a suit in Campbell County, and .of a judgment recovered thereon, for lot No. 67, in which John Burke, the plaintiff in the present action, was a co-defendant. The defendant did not claim that Burke could be estopped by this judgment of former recovery, as to so much of the land as was situated in Fayette County. He contended, however, that inasmuch as the title under which the recovery was had in Campbell County, covered the entire lot, that it was notice to Burke of an adverse claim to the part in Fayette; but the Court ruled out the testimony, and we think rightly.

By the Constitution of this State, titles to land must be tried where the land lies. The Court in Campbell, then, had no jurisdiction over so much of lot No. 67, as lay in Fayette. The whole proceeding, as to that, was a nullity; and the exemplification of it was inadmissible, ex suo vigore, to prove notice or any thing else. We will not say that the original papers might not have been produced, not as the pleadings in the cause, but as writings merely, and service of them proven by the officer, as an individual, for the purpose of charging Burke with notice of this adverse claim; but the record, per se, or a co¡ry of it, professes no inherent efficacy to effect this object, for want of jurisdiction in the Court.

[10.] The defendant’s counsel offered in evidence, the answers of Hilliard Baughan to interrogatories, which were excluded by the Court, on the ground that they were not communicated to the opposite party before the cause was submitted to the Jury.

The 47th Rule of the Superior Courts provides, “ That all objections to the execution and return of interrogatories on appeal trials, the form of the commission or service of notice must be made by the party seeking to avail himself of them before the cause has been submitted to the Jury, or they will not be heard by the Court, provided that the said interrogatories have been twenty-four hours in tire Clerk’s office; and if they have remained in the possession of the party intending to use them, they shall be communicated to the adverse party before the cause is called for trial.” 2 Kelly, 475.

What is the correct interpretation of the concluding clause of this rule ? Can the party be considered in default under it, unless his interrogatories have been called for ? And admitting that it was his duty voluntarily to tender them, docs a forfeiture in this respect involve, as a penalty, the exclusion of the testimony? Such, we apprehend, could not have been the intention of the Judges, in framing this Rule of Practice. For if so, we respectfully submit, that it would be in direct conflict with the Statute authorizing testimony to be taken by commission; for the Act declares, that the examination of the witnesses, taken pursuant thereto, shall he heard on the trial of the cause, on motion of either party. Prince, 425.

The construction then, we put upon this rule is, that it is directory merely. It gives to parties the right to call for Hie exhibition of all the testimony taken by commission, before the causéis called for trial; and, consequently, makes it the duty of the Court to compel its production. If this is not done from inadvertence or design, the party holding the interrogatories in his-possession, goes to trial at his peril — it being competent for the adverse party, when the interrogatories are offered during the progress of the trial, to take any exception to their execution- or return, to the form of the commission, service of the notice, or any other defect. It remains only to dispose of the last exception-

[11.] The presiding Judge charged the Jury, “Thatthe possession of the plaintiff was uninterrupted, continuous, notorious,, sufficient and adverse.”

All the authorities concur in holding, that the- question of adverse possession is not for the Court to decide, but exclusively for the Jury. 2 Cain. Rep. 168, ’69. 1 East. 568. 1 Burr. 397 2 Cranch, 184. 12 Johns. Rep. 242, 357. 8 Ib. 495. 7 Ib. 5. 1 Cowp. 103, 217. 5 Johns. Rep. 467. 1 Johns. Cas. 289. 11 Johns. Rep. 446. 2 Bac. Abr. 529. 14 Johns. Rep. 304, 307. 9 Ib. 102, 174. 10 Ib. 334, 377, 380, 417, 475. 11 Wheat. 276, 199, 209, 59, 75. 2 Bay. Rep. 483. 2 Serg. & Rawles’s Rep. 527.

[12.] The Act of the last Legislature declares, “ That from ■ and after its passage, it shall not be lawful for any or either of the Judges of the several Superior Courts of this State, in any Court, (meaning cause,) whether civil or criminal, or in Equity, during its progress, or in his charge to the Jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused.”

And by the second section it is enacted, “ That should any Judge of said Superior Courts violate the provisions of the first section of the Act, it shall be held by the Supreme Court for the correction of errors in this State, to be reversed, and a new trial granted in the Court below, with such directions as they may lawfully make.” Pamphlet Laws of 1849, 1850, p. 271, ’72.

Upon this ground, then, we are left without discretion. The judgment must be reversed, and a new trial awarded.

[12.] I have forborne to discuss a point much mooted in the argument, as to what constitutes adverse possession. In Confers vs. Kenan and Hand, (4 Kelly & Colb, 308,) some remarks were made as to how far, or to what extent the occupant would be protected in his possessory title. I see no reason to modify the opinion there expressed.

No man in this country cultivates his whole tract of land. It is very unusual to inclose the whole. Good husbandry forbids that the whole should be planted. One possession is ■ usually well defined by the boundaries of those which surround it, and frequent acts of ownership over the parts not cultivated or inclosed, give notoriety to the possession of the whole. Nothing but want of due diligence and care, under such circumstances, can deprive the rightful owner of his property. Whether the log pen used occasionally for a grocery, on one side of this unsettled tract of land, with the fragments of old casks in it, constitutes such an adverse possession to the whole, as to give effect to the Statute of Limitations, it would be premature at present to decide.