Salter v. Doe ex dem. Williams , 10 Ga. 186 ( 1851 )

By the Court.

Nisbet, J.

delivering the opinion.

The first request of the counsel for plaintiff in error to charge, was correctly declined by the Court. He was desired to say to the Jury, that if there was more than one Elizabeth Williams in existence, it was incumbent on the plaintiff alleging the same, to prove it. This action was brought upon the demise of Elizabeth Williams. The defendant proved that she had intermarried before the suit was brought, with one Ingram. His idea is, that if plaintiff can recover after this proof, upon the demise oí Elizabeth Williams, he must show that there was some other Elizabeth Williams, besides the one that married Ingram. What good would it do the plaintift to show that in the wide world, there was another Elizabeth Williams, and stop at that? Or what-legal obligation was there upon him to prove it ? If he (the plaintiff in error) had asked the Court to charge the Jury that the plaintiff could not recover until he showed a grant to Elizabeth Williams, not being the Elizabeth Williams that married Ingram, it would have been a different matter.

The great point in this case, is made in the second request. But the Court certifies that it has no recollection of being requested to charge as therein specified. We cannot, therefore, determine it. I will say, however, that upon a demise from Elizabeth Williams, after proof that she had intermarried before the suit was brought, although her husband died before the grant issued, there can be no rightful recovery. The demise should be in the name of Ingram, averring that the grantee, Elizabeth Williams, had intermarried with a man of that name.

[1.] The third request in the bill, and mrmbered 2d in the Reporter’s brief, does not involve a sound legal position, as we think, and -was properly declined. The interest which Mrs. Williams had in the land, as the drawer, the grant not having issued, was not such an interest as vested in her husband by the marital right, and if the grant did not issue during the coverture, upon his death it survived to Mrs. Williams. The legal estate was in the State, and the right of the drawer was an equitable ownership, in the nature of a chose in action, which could not vest in the husband until reduced into possession. He could not be seized of the legal estate until the grant issued, and if it did not issue until after the dissolution of the coverture by his death, both the equitable and legal estate united in the wife, to the exclusion of his representatives.

[2.] The 3d request states a sound position, but inasmuch as it sprang alone out of the testimony of Johnson, which was withdrawn from the Jury, there was nothing in the case which could warrant its being given in charge to them, and was for that reason, properly declined.

The exception to the first instruction in fact given, is not sustainable.

pi.] The Court charged, as we have herein held, in my remarks in reply to the 2d request of the plaintiff in error, to which I refer.

The Court farther instructed the Jury, that if defendant relied upon an outstanding title, he must show a clear and indisputable outstanding title in some one else than the plaintiff. This is also excepted to. It is true, that in ejectment the plaintiff relies upon the strength of his own title, and not upon the weakness of his adversary’s. But if, as here, the plaintiff shows a good title —if he produces a grant and a chain of title to himself — and the defendant sets up another title outstanding, that title cannot defeat the plaintiff, unless it be clear and indisputable. In this, the Court did not err.

[4.] Finally, the Court instructed the Jury, that the evidence of Johnson in relation to the deed, was improperly admitted, and would have been ruled out had it been objected to, and this instruction is excepted to.

The evidence referred to, is this: “ witness had heard Mrs. Williams say, that she had made a deed of gift of this lot of land to my (witness’) children, and have seen and read the deed of gift often.” This was illegal evidence. The sayings of the grant- or are not evidence to prove the deed and its contents — it ought to have been produced, or its loss or destruction proven. Being illegal, it was competent to instruct the Jury to disregard it.

Let the judgment be affirmed.