Roe v. Doe ex. dem. Malcom , 39 Ga. 328 ( 1869 )

Warner, J.

The error assigned to the judgment of the Court below in this case, is the overruling the motion for a new trial upon the several grounds stated therein. It is the unanimous judgment of this Court, that a new trial should be granted on the ground, that the Court below erred in ruling out the defendant’s evidence in regard to the increased value of the premises, resulting from the improvements made thereon by the tenant, as a set-off against the mesne profits thereof, claimed by the plaintiff. The 3416th .section of the Code declares that “a trespasser cannot set-off improvementr in an action brought for mesne profits, except when the value of the premises has been increased by the repairs, or improvements, which have been made. In that case the jury may take into consideration the improvements, or repairs, and diminish the profits by that amount, but not below the sum which the premises would have been worth without such improvements or repairs.” The 2855th section of the Code declares that, “against a claim for mesne profits, the value of improvements made by one bona fide in possession under a claim of right is a proper subject matter of set-off.” The point in the ease is, whether the defendant ought to have been allowed to prove upon the trial the increased value of the premises in dispute, resulting from the improvements made thereon by him, or whether he should have been restricted to the actual value of the improvements and repairs, without regard to the increased value of the premises in dispute as resulting therefrom. If a trespasser can set-off improvements which have increased the value of the premises against the mesne profits, surely one who is bona fide in possession of the premises sued for, under a claim of right, should be allowed to do so under the restriction specified in the latter part of section 3416.

The Chief Justice is of the opinion that the Court below erred in not ruling out the Justice’s Court fi. fa., which was levied on the land by a constable in Lee county, because the fi. fa. was not backed by a Justice of that county. I am of the opinion that the Court below did not err in admitting the Justice’s Court fi. fa. in evidence, upon the statement of facts as presented by the record. This fi. fa. was an ancient document, and the sale took place under it in February, 1832. The two last ejntries made on it are as follows : “October 28th, 1831. This is to any lawful officer to execute and return. John A. Burk, J. P.” The county in which this official act of the Justice was done is not stated, but on the next day thereafter the fi. fa. was levied upon the land in dispute by a constable of Lee county in the following words : “ Georgia, Lee county. October 29th 1831. Levied the within fi. fa. on lot number 43, in the 17th District of this county; the property pointed out by the plaintiff. Levi Spencer, Constable.” In view of the fact that the fi. fa. was backed the day before the levy of the constable of Lee county was made on the land, I think it is a fair legal presumption, especially after such a lapse of time, that Burk, the justice who backed the fi. fa., was a Justice of Lee county; the constable would not have been authorized to execute it, unless it had been so backed, and yet he did execute the same and returned it to the sheriff, who sold the land. In the case of Hollingsworth vs. Dichey, 24ih Qa. R., 434, this Court held, that it would presume that an entry on a Justice’s Court fi. fa. in these words : “No personal property to be found to levy this fi. fa,” was made by a constable of the county where the defendant resided, and where the judgment was obtained, though it was not mentioned by the constable who made the entry, in what county it was made. This Court, (as indeed all Courts do,) has gone very far in presuming that all officers have performed their duty, in upholding judicial sales made by them under the process of the Courts, especially when a great length of time has intervened.

There were several other points made in the record besides those specially noticed heretofore, but we find no error in the rulings of the Court below upon them. Let the judgment of the Court below be reversed.