Ford v. Holmes , 61 Ga. 419 ( 1878 )

Bleckley, Justice.

1. As to the jurisdiction of the ordinary to require the representatives of Castleberry to execute a title to Ford, the case is governed by section 2549 of the Code, which reads as follows: “If the intestate, during his'life, executed a bond to make titles to land, and dies without making such titles, the holder of such bond, after having complied with its conditions, may apply to the ordinary having jurisdiction over the estate, for an order requiring the administrator to execute the titles according to the terms of the bond, in all cases annexing to his petition a copy of the bond.” This is the only provision of the Code which empowers the ordinary to interfere where the vendor is dead and the vendee alive. Section 2551 applies where the vendee is dead and the vendor alive; and, as enlarged by the act of 1866, this section may be invoked, either where there is a bond for titles, or where the purchase money has been paid by the vendee before his decease. A living man may be called on in behalf of the heix-s of a decedent, with or without bond, but the representatives of a deceased man are not to act at the bidding of the ox*dinary- in passing title out of the estate, except where there is a bond. Other cases are for a court of chancery, or for the superior court under its chancery powers. Let it be conceded that a mere letter may be treated as a bond for titles, still it is apparent that the proceeding before the ordinary in the present case, was not based on the letter from Castleberry to Eord. No copy of the letter was attached to the petition, nor was there any recital of, or reference to such a documeixt in the petition itself. Moreover, it is not pretexxded that the representatives of CastlebeiTy complied with the order of the ordinary. No title was made in pursuance of the oi’der, and unless that had been done, even if the order were valid, the rejection of the proceedings before the ordinaxy as evidence, could hardly be held to be erroneous. It is not the scheme of the statute that the judgment of the ordinary shall pass the title, but that compliance with the judgment is to be enforced, if not voluntarily accox’ded, and a conveyance actually executed. Both the judgment of the ordinary and a deed from the representatives of the estate, are contemplated as necessary. A further difficulty under which the complainant laboi’ed was, that he proceeded before the ordinary against certain pei’sons as the administratox’s of Castleberry, and it is denied in the record that they were administrators, or that some of them were. But the conclusive ground for the rejection of the record from the court of ordinary was, that the proceeding in that court was not based upon any bond for titles, so as to give the court jurisdiction of the subject matter.

2. The brief of evidence is referred to by Judge Hall as requisite to modify the statements of fact in the second ground of the motion for a new trial, and the brief makes a clear case for the admission of the letters which purport to have been written by the complainant. There was prima facie evidence that they were in his handwriting. Was he a competent witness to disprove their genuineness? Castle-berry, to whom they seem to have been written, being dead, and the main question in the controversy on tidal being, whether he died seized of the premises in dispute, or whether he had passed title, legal or equitable, to the complainant, the force of the letters lay in the admissions which they contained. If the letters were genuine, these admissions were made to the deceased, and doubtless influenced his action ; at least, they were of a nature calculated to influence it. He could not be heard, being dead; and to hear the complainant in denial of written admissions apparently made to the deceased, would be as objectionable as to hear him in denial of the contract apparently made with him. If the instruments were deeds instead of letters, the complainant would certainly be incompetent to prove them a forgery ; and, as these instruments, though letters, are important evidence on the line of disclaimer, it seems to us that the same principle applies. This is a much stronger case for holding the rule of incompetency than was the case in 44 Ga., 46.

3. The court charged the jury, that if the complainant had paid the purchase money he was entitled to a decree. The parts of the charge excepted to were thus qualified, and rested on the hypothesis that the purchase money was unpaid. Viewed in this light, the correctness of the charge, in so far as it was adverse to the complainant, cannot be doubtful, and the third head note needs no expansion. The finding of the jury evinces that in their opinion the land had not been paid for, and there was no offer by the complainant to pay for it now. It may be well to suggest, by way of caution, that there may be doubt whether the twenty years prescriptive term can be urged in an'y case where the seven years term would not be equally effective, until twenty years shall have run in favor of the ¡possession since the Code took effect — that is, January 1st, 1863. Possibly there is no authoritative ruling that there was a twenty years limitation on land suits prior to the Code, except under an old statute which was apparently confined to cases in which the period could be counted from the passage of the acit.

4, o, 6, 7. It appeared that, though the defendant and the juror rode together, they had no conversation touching the case while the trial was in progress. ITow they came . to unite in passing to and from the court was explained. The brief of evidence was certainly amendable. To suffer counsel to adjourn a case from term to vacation would be quite impracticable. In the argument before us it was urged that Judge Hall had no right to add marginal notes in revising the motion for a new trial. We see no objection to the practice. The judge may both explain and vindicate his rulings. By doing so he may subserve the cause of truth and justice.

Judgment affirmed.