Lanier, Hamilton & Co. v. Hebard , 123 Ga. 626 ( 1905 )

Fish, P. J.

(After stating the facts.) 1. The defendants, objected to each of the powers of attorney to William B. Yan Benschoten, when it was offered in evidence, because it “failed to describe the land described in plaintiffs’ petition by county, number, or district;” and upon the further ground that it did not in any way connect Benjamin G. Barker with the parties creating the power of attorney, and no evidence was offered by the plaintiffs connecting such parties with Benjamin G. Barker and showing that they were his heirs at law. Another ground of objection made was abandoned in this court', There was no merit in the first ground, as the power given covered all the real estate belonging to the donors in this State, wherever situated.

2. The second ground of objection ’ was meritorious,' unless the plaintiffs by subsequent evidence removed it; as, at the time the objection was made, there was absolutely nothing in evidence which tended to show that the. parties executing either of these papers had derived title in any wáy from Benjamin G. Barker, the grantee of the State. The plaintiffs sought to show that the parties creating these powers of attorney were the heirs at law of Benjamin G. Barker, by certain recitals contained in the deed from William B. Yan Benschoten and wife to J. M. Stiger, this deed being more than thirty years old. This was the next piece of evidence introduced, the probative value of which will be considered later. The judge was not bound to sustain the objection to the powers of attorney at the time when it was made, especially as the case was before him at chambers, but could properly admit them, subject to be ruled out, unless their relevancy was shown by subsequent evidence. We shall presently come to the real, substantial error which he committed, which renders the ruling just discussed of but little or no importance and requires a reversal óf the case upon its merits.

3. We think it is clear that the plaintiffs failed to prove a perfect title as contemplated, by the Civil Code, § 4927. To authorize the granting of an injunction under this section, “the plaintiff must show a perfect title upon the face- of the papers presented by him and constituting his chain of title. If such papers do not show upon their face a perfect title, aliunde’evidence will not be admitted to explain any defects in the title apparent upon the face of the papers,” Camp v. Dixon, 111 Ga. 674, 676; Wiggins v. Middleton, 117 Ga. 162, and cit. Counsel for the plaintiffs contend that they did prove such perfect paper title by .a chain of title from the State down to the plaintiffs, which they introduced in evidence. One link in this chain of title was the deed from William B. Yan Benschoten and wife to J. M. Stiger, wherein said Yan Benschoten purported to convey, for himself and for others, as heirs at law of Benjamin G. Barker, the lands in question to such grantee. This link was fatally defective, in that it was not shown that the parties for whom Yan Benschoten undertook to convey the lands to Stiger were the heirs at law of Benjamin G. Barker. As we have intimated, counsel for the plaintiffs rely upon certain recitals in this deed to establish this fact. They insist that as the deed is an ancient one, the recitals therein are to be taken as true; and that these recitals, so considered, show that the persons in whose behalf the deed was made were the heirs at law of Benjamin G. Barker. The recitals relied on are as follows: “ said premises having formerly belonged to the estate of Benjamin G. Barker, deceased, and are herewith conveyed and intended to be conveyed by the said William B. Yan Benschoten in his own right and by several powers of attorney dated November 6th, 1871, and 8th of December, 1871, so far as. the rights of other heirs and representatives of said Benjamin G. Barker are or may be concerned.” It will be noted that, it is only indirectly and inferentially declared here that William B. Yan Benschoten is an heir at law of Benjamin G. Barker,, and that who were the “ other heirs and representatives of said Benjamin G. Barker,” for whom he was acting, is not stated. It will be observed also that there is no direct and explicit statement that the makers of the deed are- all the heirs at law of Benjamin G. Barker. Admitting, however, for the sake of the argument, that these recitals, taken in connection with the two powers .of attorney introduced in evidence, the dates of which, respectively, correspond with the dates of the powers of attorney here mentioned, can be considered as a declaration by William B. Van Benschoten that he and the parties signing such powers of attorney are the heirs at law of Benjamin G. Barker, is this declaration by him, when found in an ancient deed which he executed, sufficient, in and of itself, to prove that he and the other persons for whom he acted in executing the deed were the heirs at law of Benjamin G. Barker? We think not.

In Dixon v. Monroe, 112 Ga. 158, it was broadly held : “A recital in a deed that the parties making it are heirs at law of a former owner is no evidence of the fact, except as against parties to the deed and their privies.” The same ruling was made in Hanks v. Phillips, 39 Ga. 550, and Yahoola Co. v. Irby, 40 Ga. 479. In none, of these cases, however, was the deed containing the recital an ancient deed. In Yahoola Co. v. Irby, McCay, J., said: “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 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.” Carver v. Astor, 4 Peters, 83, was cited, wherein'it was held that the general rule is, “that a recital of one deed in another binds the parties and those who claim under them. Technically speaking, it operates as an estoppel, and binds parties and privies; privies in blood, privies in estate, and privies in law. But it does not bind mere strangers, or those who claim by title paramount to the deed. It does not bind persons claiming by an adverse title, or persons claiming from the parties, by title anterior to the date of the reciting deed. . . But there are cases in which such a recital may be used as evidence even against strangers. If, for instance, there be the recital of a lease, in a deed of release, and in a suit against a stranger the title under the release comes in question, there the recital of the lease, in such release, is not per se evidence of the existence of. the lease. But if the existence and loss of the lease be established by other evidence, there the recital is admissible as secondary proof, in the absence of more perfect evidence, to establish the contents of the lease; and if the transaction be an ancient one, and the possession has been long held under such release, and is not otherwise to be accounted for, there the recital will of itself, under such 'circumstances, materially fortify the presumption, from lapse of time and length of possession, of the original existence of the lease. Leases, like other deeds and grants, may be presumed from long possession, which can not otherwise be explained; and under such circumstances, a recital of the fact of -such a lease, in an old deed, is certainly far stronger presumptive proof in favor of such possession under title, than the naked presumption arising from a mere unexplained possession.” It is somewhat significant that Judge McCay, though citing that case, did not except ancient deeds but announced the broad and unqualified rule that “a recital in a deed that the parties making it are heirs-at-law of a former owner is no evidence of the fact recited, except as against parties to the deed and [their privies.” And the reasons, above quoted, which he gave to sustain the ruling, are as applicable to a recital in an ancient deed as to one in a recent deed. In' a few courts a recital in an ancient deed of a pedigree of inheritance has been held admissible to show the state of the relationship; but the great weight of judicial authority is to the effect that before such a recital, even in an ancient deed, can be considered as evidence of relationship, possession of the premises under the deed, or other corroborative circumstances, must also appear. 2 Wig-more on Ev. § 1573 (3), and cases cited in note 7.

The rule, as we understand it to be established by the great weight of outside authority, is, that before the recitals in an ancient deed, of the death of the former owner and of the relationship of the grantor to him, can be taken as evidence of the facts recited, there must be evidence of the death of the person making the recital or declaration and that he was de jure related by blood or marriage’ to such former owner, or proof of undisturbed possession, under the deed, of the premises conveyed for such a length of time as to raise a presumption that such recitals in the deed are true. While the rule seems generally recognized that in matters of pedigree the declarations of deceased persons who were de jure related by blood or marriage to the family in question may be given in evidence, yet. before such a declaration can be received in evidence the relationship of the person making it with the family must be established by some proof independent of the declaration itself. There is absolutely no evidence disclosed by the record in this case which shows that William B. Van Benschoten, who made the recitals in this deed, which are relied on by the plaintiffs, was dead when the case was tried. Nor is there any evidence, other than his own written declaration, that he was in any way related to Benjamin G. Barker. Therefore his written declaration, that he and the other persons for whom he acted were the heirs at law of said Barker, stands upon no higher footing than such a declaration made by one who was in no way related to Barker. This being true, it is unnecessary to inquire whether, if these facts had been shown, his declaration that the grantors were the heirs at law of Barker would have been admissible. In this connection we will, however, say that the declaration in question seems to be more the statement of a legal conclusion from facts undisclosed, than a statement of the real relationship of the grantors to Barker. There was no proof, as we will later show, that possession of the lots, or either of them, was held for any length of time under the deed to Stiger; and even if there had been proof of such possession of the lots, or either of them, for such length of time as to raise a presumption that the recital that the grantors were the heirs at law of Benjamin G. Barker was true, such proof would necessarily have had to be made by aliunde evidence,which, under the ruling in Camp v. Dixon, supra, would not be admissible for the purpose of bringing the plaintiffs’ case within the provisions of the Civil Code, §4927, as such evidence could not be received to explain defects in the title apparent upon the face of the papers. Our conclusion, therefore, is that the plaintiffs did not show the “ perfect title ” which will, under this section of the code, relieve an applicant for injunction from the necessity of averring and proving insolvency of the defendant, or that the threatened damage will be irreparable, or other circumstances rendering the interposition of the writ necessary and proper.

4. The plaintiffs not only failed to prove a perfect title, but proved no title at all to the land or timber in question. WhileStiger’s affidavit was that he remained in the uninterrupted, quiet, peaceable, adverse, and notorious possession of lots 328 and 329) until he sold and conveyed the same to Hopkins, and his (Sti-. ger’s) ownership and possession of these lots extended over a period of twenty years, during all of which time he paid taxes on them, and that during the twenty years of his ownership he had houses,, fences, buildings, and improvements placed upon certain of the. lands described in the deed from William B. Yan Benschoten to. him, and that his acts of ownership and possession extended over- and embraced all of the property described in this deed, it is¡ very clear that he was only swearing to his own conclusion. The deed to him embraced some 21,560 acres of land, consisting of lots containing 490 acres each, and situated in as many as five different counties; and the payment of taxes on all of the lands, embraced in the deed and the actual possession of one or more-of the lots, other than 328 and 329 in Ware county or some one, of the other lots which was contiguous to these, was not even constructive possession of such two lots. The undisputed evidence is, that there was no actual possession of the two lots in question, or-of any lot conveyed in the deed contiguous to these lots. It follows, therefore, that even if the threatened injuries would be ir-. reparable or if the plaintiffs would be saved the necessity of a. multiplicity of suits, they were not entitled to an injunction, because they failed to prove title to the. land or timber in question..

Judgment reversed.

All the Justices concur, except' Simmons^ C. J., absent.