Williams v. Rawlins , 33 Ga. 117 ( 1861 )

By the Court —

Lumpkin, J., delivering the opinion.

This is a motion for a new trial, and the first ground is, that the Court erred in not rejecting several sets of interrogatories, because they were taken by Lawson Black, an attorney of the Court.

1. Mr. Black, although an attorney of the Court, was not an attorney in this case. He was not, therefore, disqualified from acting as a commissioner.

2d. Because the Court refused to reject the depositions of William Dickey, the signatures of the witness and of the commissioners appearing to be in the same handwriting.

The Judge properly submitted the question of identity to the jury. -Every likeness is not the same. The exceptions to the charges of the Court respecting mesne profits were abandoned, as no mesne profits were recovered.

3d, Because the Court erred in ruling out the testimony of W. W. Williams, to the effect that before executing the bond for titles to the land, to his brother, he bought it from Samuel Oliver, the drawee, and paid the grantee a portion of the purchase-money, namely, one-hundred dollars, and the grant fees, the price of the land being two hundred dollars.

The recovery, in this case, was upon the demise of Samuel Oliver. If Oliver hinlself had given the bond directly to Amos A. Williams, and only a part of the purchase-money paid, Oliver could have recovered the land, and this could only have been prevented by Williams paying, or offering to pay, the balance of the purchase-money. The vendor holds the title as security for the purchase-money, and ejectment is one of the methods of enforcing payment.

4th. Because the Court rejected the testimony of James Henderson, offered to contradict William Rogers.

This evidence was ruled out on the ground that the foundation had not been laid for its introduction. By referring to the testimony of the witness intended to be impeached, it will be seen he was not asked the place where he made the statement proposed to be contradicted by Henderson. True, it is rather obscurely expressed. In favor of the judgment of the Court, we should give it the construction he did.

5th. The uniform decisions of this Court have been to authorize the grantee to sue in the name of the grantor, when the grantee’s deed is rejected on account of the adverse possession of the. land, at the time it was made. The deed, though not good to pass the title,.is good as a power of attorney to sue.

6th. We see no error in the Court,- as to his charge respecting Lively’s possession. Indeed, this point was expressly decided when this case was up before. Where the plaintiff can acquire a statutory title by the occupation of successive tenants, can the action of ejectment be brought against him ? Quere.

7th. The exception as to the former suit, not being between the same parties, is, a mistake, in fact, and abandoned on an inspection of the record.

8th. It is too late to object to a record for want of proper authentication after it has been admitted and read to the jury.

9th. As to the motion for a new trial, on account of the loss of the .interrogatories, some of the sets said to have been mislaid, were seen in the custody of Williams himself. The Court, in the exercise of a sound discretion, held him responsible for these papers.

10th. It is objected, too, that the former suit between these parties was never dismissed, an order to that effect being entered on the bench docket merely, but not on the minutes of the Court. Then it is pending still, and this is not the proper motion. The party should be compelled to elect which suit he will prosecute. It should be taken advantage of by pleading aliter lis pendens. .

Let the judgment be affirmed.