Hanks v. Phillips , 39 Ga. 550 ( 1869 )

McCay, J.

1st. The provision in the Code, section 2670, is upon its very face, intended to qualify the ordinary effect of registry. The clause reads: “A registered deed shall be admitted in evidence in any Court in this State without further proof, unless the maker,” etc. It would be a strange construction of the law to hold, that nevertheless, on the trial of the issue thus made up, the deed shall still be considered prima facie proven. As it seems to us, the leading intent of the provision is simply to do away with the effect of the registry by the affidavit of the maker, or his heir, or the party, leaving the genuineness of the deed to be proven as on other papers not required by law to be registered.

2. The plaintiff below having shown title to one half the land in William C. Phillips, (who it is admitted was dead at the trial,) cannot show title out of William C! Phillips by the mere production of a deed from certain persons claiming to be his heirs; it must be proven that these persons were his heirs, and the recital in the deed is no proof, unless it be against a party claiming under the deed. This is nothing but common sense. Anybody might make a deed reciting the same heirship. If the defendant claimed under the deed the same rule of common sense would say he could not claim under it and deny it at the same time. The Court properly charged the law on this point, and we do not see how the verdict can stand. William C. Phillips being dead, the recovery cannot be in his name, and there is no connection proven between him and any of the plaintiffs, as to one half of the land. Adams’ title passed out of himself to the whole lot, one half going to Williamson and one half to William C. Phillips, so that he can recover nothing. If, as seems to be admitted, it was the intent of the jury to find in favor of Bishop on the Statute of Limitations, then the verdict is wrong, for without the proof of the heirship to William C. Phillips, the plaintiffs only showed title to one half the land.

3 and 4. But we think the Court and jury both wrong as to the statute of limitations in favor of Hanks, administrator of Galt. There is no point made on the proof of Galt’s deeds, and we do not inquire if there was sufficient proof of their existence and loss. It was before the jury that Galt had paper title to the whole lot. Bishop went in at first as Galt’s tenant, he afterwards bought from Galt one undivided half, and he testifies, that, after the purchase, he had possession of the whole lot, one half as his own and one half as tenant for Galt.

There was no division of the lot. If Bishop was in possession of any, he was of all. He held the one undivided half of the whole. He held adversely to the plaintiffs • he held as the tenant-in-common with Galt. ' In fact, he was Galt’s tenant as to the one half he claimed as his own, for the title was yet in Galt. The true owners looking after their land would have found Bishop in possession, claiming one undivided half under a bond for titles from Galt. /

We think Galt’s estate stands on the same footing with Bishop’s, if it be made out that Galt had color of title, and the Court ought to have granted a new trial.