Doe ex dem. Bohanan v. Roe , 32 Ga. 390 ( 1861 )

By the Court.

Jenkins, J.,

delivering tlie opinion.

1st. The first error assigned in this record is the rejection of the testimony of Deese, a witness offered by the plaintiff, because of his interest in the event of the suit. One of the deeds in plaintiff’s chain of title is made to William F. Bond & Co. One of the demises laid in the declaration is in the name of Wm. F. Bond & Co., consisting of William F. Bond, Joel Deese, and D. C. Gibson. Deese was introduced to prove ' that the three last named persons (of whom he is one) constituted the firm of Wm. F. Bond & Co. Deese testified that he had no interest in the event of the suit, “ having been released by James Bond” who was the last lessor of the plaintiff. By plaintiff’s evidence in chief, it appears that the only title James Bond had to the land was a deed from William F. Bond individually, for his interest therein, specified to be one half. He had no deed from Deese. From ydiat then did Bond release Deese ? The interest of Deese was derived from Harris; and there is no evidence that he had ever parted with it. He was one of plaintiff’s lessors. He was, moreover, for aught that appears, liable for costs. In all this there is legal evidence of interest, against which, the opinion of the witness that he has no interest, cannot prevail.

Besides, as will appear in the sequel, the sole fact sought to be proven by this witness, would not (if in evidence) have availed the plaintiff. The evidence was properly rejected.

2d. It is objected, secondly, that the charge of the Court precluded the jury from finding one-half, or any part, of the land for the plaintiff. . Conceding that the charge of the Court.had this effect, plaintiff in error has no reason to complain, unless it appeared that he was entitled, under the law and the evidence, to recover less than the whole interest. If so entitled, it must have been either upon the demise of Wm. F. Bond, Deese and Gibson, or upon the demise of James Bond. He could not have recovered upon the former: 1st. Because there was no evidence of title in Deese or Gibson. 2dly. Had there been—had the evidence of Deese been received—the joint demise of ¥m. F. Bond, Deese and Gibson, could not have availed the plaintiff, because the evidence showed a severance of their joint interest: 1st. By the deed from ¥m, F. Bond to James Bond. 2dly. By the sale, by the sheriff, of ¥m. F. Bond's interest in the land. “If a joint demise is laid in the declaration, evidence must be given of a joint interest in the lessors.” 2. Greenleaf on Evidence, sec. 317. And the evidence must show this joint interest to have existed at the commencement of the suit.

Neither could there have been a recovery of apart interest upon the demise of James Bond, for the evidence shows that at the time of his purchase of ¥m. F. Bond's interest in the premises, there was a judgment lien upon that interest in favor of James Bond, and that, before the commencement of the suit, that interest was actually sold under that judgment by the sheriff, and a title executed to the defendant as the purchaser.

This title the plaintiff in error sought to invalidate, by showing that the judgment had become dormant, notwithstanding the entries upon the fi. fa., showing the contrary. This point in the case was contested on both sides with great zeal. Its merit depended upon the bona fides of the following entry, viz : “ No property to be found whereon to levy this fi.fa., this, the 4th of August, 1846. Signed William H. Macarthy, sheriff.” Plaintiff introduced a witness, who swore that on a certain day, in 1847, he saw the fi. fa. at Cassville, when and where the sheriff of Cass county sold a lot of land under the same fi:fa., and examined it carefully, to ascertain whether it had become dormant, and that the above entry of 4th August, 1846, was not upon it. Defendant introduced another witness, who testified that he examined the.same fi. fa. on the same day, at the same place, and on the same occasion, and that the entry impeached as fraudulent was then upon it. Both witnesses stood before the jury as credible; their testimony conflicted; the jury predicated their verdict upon that of the witness swearing affirmatively, setting aside that of the witness who swore negatively, (though equally credible,) and in so doing they followed the law. The plaintiff was not, therefore, entitled to recover an interest less than the whole.

3d. We have only to consider the last exception, viz: that the verdict was contrary to law, the charge of the Court, and the weight of the evidence. Having found it necessary, in considering the second exception, to show that plaintiff had failed to prove a title to an interest less than the whole, and in so doing, to, show that there could be no recovery on the demise of William F. Bond & Co., or of James Bond. We need only add, that as plaintiff himself showed title out of Bohanan, and out of Harris, (the other lessors,) there could have been no recovery on their demises. We think the verdict should not be disturbed.

Let the judgment be affirmed.