Wood v. Milly Mcguire's Children , 17 Ga. 303 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The first error assigned in this case is, the refusal of the Court to allow the defendants to re-examine the witness, William Johnson.

A preliminary question is raised in the argument of this cause, as to the proper construction of the Act of 1853-’4, granting to either party in a cause the privilege of a viva voce examination of his adversary, in open Court. It is insisted, that inasmuch as the previous Acts authorizing discoveries at Common Law did not give the right of cross-examination, that neither is it conferred by the late Act, which is amendatory to the Acts of 1847 and 1849. The Act of February, 1854, provides, that “ any party, plain tiff or defendant, in any action at Common Law, pending in any Superior, Inferior or Justice’s Courts of this State, wishing a discovery from or on the evidence of the adverse -party, on the trial of such action, may •apply to the Clerk of said Superior, Inferior or the Justices ■of the Peace, in whose Courts said action may be pending, in case the party whose evidence is desired, reside in the county where said case is pending, for a subpoena, requiring said party to be and appear at said Court, and testify in said action as other witnesses now, by law, are required to do — which subpoena shall be personally served, 30 days before the term of the Court at which he is required to attend. And in case said party shall fail or refuse to be and appear, and testify in said action, as required, then and in that case, said cause shall be subject to the same continuances as are now allowed, by law, for the absence or non-attendance of other witnesses; and after said continuances are exhausted, said action shall be dismissed, provided it be the plaintiff who refuses to appear and testify as aforesaid; or if the party who fails or refuses to appear as aforesaid be the defendant in said cause, his plea or»pleas and answers, if he has filed any, shall be stricken out and judgment given against him by default; or such other order may be taken or had in said cause, as in the discretion of said Court may be just and proper. And in the event that said parties, plaintiff or defendant, whose evidence or discovery may be required in action pending in either of said Courts, shall or may, either before, at the time or after the commencement of said action, and before the time of giving said testimony, remove or do reside out of said county in which said action is pending, then and in that case interrogatories may be filed, as is now usual for other toitnesses, under the same rules and regulations as is now required by law; and in case of refusal to answer the same, or in case they are answered evasively, the same rule or order may and shall be had as herein before provided, in case of failure or refusal to attend and answer where said parties are subpoenaed to attend in case they reside in said county.” (Duncan’s Digest, 6.)

It will be perceived that a party, under this Act, when subpoenaed as a witness, is required to attend the Court and “ testify in the action as other witnesses now, by law, are required to do.” In other words, they are placed upon the same footing, in all respects, as other witnesses. The Statute imposes no restriction — no limitation, upon their testimony or mode of examination. We do not feel at liberty, much less inclined, to do so. It is a beneficial Act, intended to facilitate the ascertainment of truth, the end of all judicial proceedings, and should therefore be liberally construed. • To deny the right of cross-examination, is to emasculate the law of half its strength.

[2.] We return, then, to the main point in this exception.

Mr. Johnson, the witness, had been introduced and examined by the plaintiffs, cross-examined by the defendants, and re-examined by the plaintiffs. Upon this re-examination by the plaintiffs, the questions propounded were not confined to matter by way of rebuttal to the cross-examination, nor explanatory of his first examination. He stated, in answer to ■an inquiry asked of him, a new fact as to the reports in the neighborhood or county, concerning the title to the land in dispute. And the defendant’s Counsel proposed to push the investigation further, as to this rumor. As for instance, when he heard it ? whether before or after he acquired title ? Also, as to the nature and extent of the-rumor ?

Was the Court right in denying to the party this privilege ? Had the second examination by the plaintiffs been confined to what was either explanatory of the first, or in rebuttal of his •cross-examination, the examination might have been considered as closed. But the Court having suffered this new matter to be brought out, opportunity should have been extended to the defendants, to have interrogated the witness further as-to this new matter.

[3.] Were the admissions of Absalom McGuire, made between 1830 and 1837, adverse to the defendant’s title, competent testimony ?

It is conceded, that if a party in possession of property, makes admissions against his interest, it is good evidence, both as to him and Ms privies. It is denied, however, that McGuire was either in possession of the premises or had the title thereto during that period. For the purpose of letting in this-proof, we think that both of these facts may be assumed to be-true. A man by the name of Roberts drew this lot of land, No. 68, in what was originally Houston, now Bibb County, and the same was granted to him in 1822. It seems that the-title to this lot, after passing through several intermediate conveyances, vested in one Thomas Rainey, who, by his will, made in 1828, and admitted to record in 1829, devised the land to the children of Milly McGuire, his daughter, the mother of the plaintiffs and the wife of Absalom McGuire, under whom the-defendants claim. In 1830 or 1831, the McGuire family came from the up-country and located, for a brief space of time, on this land. But being low and swampy, they soon moved out to a contiguous tract, continuing, occasionally, to cut timber off of 68, until sold by McGuire to Calhoun, in 1837.

It was during this interval that the admissions were made by Absalom McGuire, which were sought to be given in evidence; and to the effect, that the land belonged to his children, under and by virtue of his father-in-law’s will.

While this kind of occupancy, on the part of Absalom McGuire, may not be deemed sufficient, in law, to constitute adverse possession as against the plaintiffs, still, it may serve and suffice to let in his disclaimer of title, in himself, during this time. But be this as it may, upon' the other view of the subject the point is plain. Concede that the title to this land was not in Absalom McGuire, and it clearly was not and never was, still, the defendants claiming under him, and this fact having been fully disclosed before these admissions of McGuire were offered, the defendants are estopped from denying his title— Seeking to shelter themselves under it, as they confessedly, do, they must take it cum onere: take it incumbered with all the admissions made by their vendor respecting it, while he ■ held it, and before he conveyed to Calhoun.

[4.] A great many points are raised upon the record, growing out of the several charges giv'en and refused by the Court, touching the Statute of Limitations. Upon a careful examination of the facts, we must say, the case upon the proof, was - fairly, not to say favorably, submitted to the Jury for the defendants. The Circuit Court held, and we think, very properly, that it appearing from the face of the deed itself, as well as the testimony of Mrs. McGuire, and from other circumstances, that Calhoun not only knew of plaintiffs’ .title, but recognized its validity, stating that he would risk the. deed of the father, who executed the deed as . parent, and the oldest son,, until the other children became of age, when he would have his title perfected — we say, the Court very properly ruled, that such possession could not ripen into a title,, under such circumstances ; but that Calhoun took and held in subordination to the plaintiffs’ title. Instead of claiming the fee and believing, bona fide, that he acquired it, by virtue of his purchase, from■ the father and the oldest child, he both knew and acknowledged the contrary to be true, and that. the fee was in the plaintiffs.

[5.] It is insisted, with great apparent earnestness, by Counsel for the plaintiffs in error, that notice to the vendee, of an outstanding title, cannot affect the bonafides of his possession. And in general this is true. If A takes possession of land bought of B, believing that he has acquired a fee,, notice of an ■outstanding title cannot affect him, although it turns out to be the true or paramount title. But in the case before us, there is not only notice but recognition ; and this is the proper distinction, and is fatal to the Statutory title sought to be set up against this recovery.

Calhoun’s possession, acquired by a purchase from the two McGuires, continued down to 1847, within five years of the commencement of the suit, and that fact is conclusive against the bar of the Statute. Had the feoffees under Calhoun, Gray and Johnson bought ignorantly, and consequently innocently, viz: without knowledge of the defects in the original purchase by Calhoun, and held for seven years, the thing would have been different, notwithstanding Calhoun bought with knowledge. And so the Court, in substance, instructed the Jury.

[6.] It is not disputed, I believe, that where both parties derive title from the same source, that it is not necessary for either party to have title beyond that. Here, old Mr. Rainey is the propositus or starting point of this title, quoad these parties, plaintiffs and defendants. It was not incumbent upon the plaintiffs, therefore, to go back beyond him and deduce the chain, link by link, from Roberts, the grantee, to Rainey.

[7.] We approach, now, a new and interesting question. Where the defendants in ejectment claim different parcels of land under distinct titles, and do not sustain the relationship ■ of landlord and tenant to each other, can a joint action be maintained against them, and either a joint or separate recovery be had for the premises, as well as the mesne profits ? The Court ruled, that this might be done, and the decisions in New York fully sustain the practice. That this might be done at Common Law, so far as the recovery of the possession was concerned, and may still be the doctrine in those States where •the Common Law rule has not been changed, is quite likely. In the fictitious form of action adopted from convenience, the title to the premises only was settled; and the real parties then litigated as to the mesne profits. Mr. Adams, however, in his standard work on Ejectment, intimates that the rule is different, even in England. (pp. 236, 237.)

In this State, mesne profits must be recovered in the same suit with the premises; and a subsequent action cannot be brought to recover mesne profits. Apart, then, from the inconvenience of complicating the defence of one defendant with that of another, can separate verdicts be rendered against them ? We know of no practice to warrant it. In this case, the verdict was joint for the mesne profits as well as the possession of the premises, notwithstanding one of the defendants had only occupied a few acres of the land; and the relation of landlord and tenant did not exist between them.

His Honor, the presiding Judge, charged that no arrangement could be maide between the parties, after suit brought, to prevent a joint judgment. And this is true. But the proof shows that Wood bought of Johnson in 1850, whereas the action was not instituted until 1852. The defendants, therefore, held independently of each,o.ther, at the commencement of the suit. Upon the best reflection we can give this subject, and with a view to the establishment of a proper practice, we feel constrained to over-rule the direction given to this branch of the case.

[8.] We fear, too, we cannot sustain the Court in refusing to listen to the written requests to charge the Jury, at the conclusion of the general charge which he had already given. The Act of the last Legislature imposes this as an imperative duty upon the presiding Judge, and prescribes no particular time when it is to be done. And as yet, the Judges, in convention, have established no rule upon this subject. It is doubtful whether it be practicable or politic to do so. What the requests were does not appear; the record is silent upon this subject. It may have been to supply some omission; and if so, the application should have been complied with. The bill of exceptions, as it stands, places the Court in the predicament of refusing to listen to any request, regardless of its •character. And to affirm this, would be to repeal the Statute.