Yahoola River & Cane Creek Hydraulic Hose Mining Co. v. Irby , 40 Ga. 479 ( 1869 )

McCay, J.

1. We see no reason why the recital in a deed by John and Jacob Doe, that they are the heirs-at-law of William Doe, should be any evidence of that fact. Any other two men might make a deed with the same recital in it, and there would be no reason why the recital in one of the deeds should be taken for true rather than in the other. ' To make out a title to land, all that would be necessary, if this were the law,,would be to write a deed to it, setting forth that the maker of the deed was the heir-at-law of the true owner. Such recitals bind the parties to a deed, and all persons claiming under the deed, but they are no evidence at all against strangers: 4 Peters, 83; Greenleaf Evid., 1 vol., sec. 23.

2. Our Code, section 2965, allows an action of trespass by the true owner, even though he was not in possession of the land at the time, provided the land be vacant. At common law the plaintiff must have been in possession. Hence the fiction of the action of ejectment, in which, to make out the case it is necessary that the tenant in possession shall confess lease, entry and ouster in John Doe. If the plaintiff be in actual possession, he may maintain the action of trespass without showing title: Rev. Code, sec. 2964. But it is only under our statute that the true owner can bring trespass, if he was. not in possession at the time. To bring himself within the statute he must show he is the true owner. This he can only do by showing title.

3. The power to sell must always be proven: 4 Ga., 148, 156; 24th Ga., 494. If that power be shown, the fact that the prescribed forms were pursued, will be presumed from the recitals until the contrary appears: Rev. Code, section 2520.

4. A corporation may be guilty of a trespass other than a trespass on the case as well as an individual. Its servants, obeying its orders, may render it liable to such an action. It may be that Dr. 'VanDyke, in directing the trees cut, was acting as the claimant of the land, but it is also true that the hands, and the person who superintended and directed them, were acting as agents of the corporation, and it makes but little difference whether the trespass was committed by the agent, Dr. VanDyke, or by the other agents, the actual cutters of the trees.

5. The jury, in their,damages, are confined to the proof. It appears very plainly here that there was a bona fide belief in Dr. VanDyke that the land belonged to him, and no greater verdict ought to have been given than will cover the injury shown by the proof to have been inflicted. '

Judgment reversed.