Roe v. Doe , 34 Ga. 167 ( 1865 )

Lyon, J.

Two questions are made by this record:

1st. The admission by the Court, as evidence,' of the declarations of Drewry Williams, deceased, the former owner of the premises in dispute, and from whom both titles are derived, that ho had given the land to Henry Williams, the plaintiff, that the land belonged to him, that there was a division by said Drewry "W illiams of his property among his children, in which this land, with other property, fell to the plaintiff; the statements of the witnesses, that Drewry Williams gave the land to his son Henry, that Henry with his father’s knowledge, took possession of the land, cultivated it, and rented it out as his, etc., etc.

2d. The charge of the Court to the jury, that Mary Howell, and the children of Redding and Polly' Rutland, and Cowart, the defendant, who claims his title through these persons, were all concluded by the judgment establishing the copy deed, and that in the present action, the copy was to be regarded by the jury as the deed of Drewry Williams.

[1.] We think the first obj ection, that to the evidence on the ground of its irrelevancy, was properly overruled. Whether Drewry Williams did, in fact, give this land to his son Henry, was the real issue before the Court, and to. that issue, this evidence was strictly relevant. We do not mean to say, for we do not so believe, that the evidence by itself was sufficient to establish the fact, but it certainly shows an intention, at least, to give the land. It is claimed that this intention was. perfected by a deed, but that this deed has been lost, and other evidence of the fact of the gift is necessary. Row, as the intention is here manifested, other very slight evidence might be sufficient to satisfy the jury that the gift was completed. We do not say that it will, nor do we say any thing for the purpose of affecting the issue. What we do say is, that these declarations, upon this issue, are admissible to the jury to be considered by them.

[2.] Then as to the other obj ection — that to the charge of the Court. This, we think, was well taken. The defendant derives his title to the land from the children of Redding and Polly Rutland, and they, under a devise from Drewry Williams directly to them.. The proceeding to establish the copy deed in lieu of the lost original, in Twiggs Superior Court, was against the heirs at law of Drewry Williams. The children of Redding and Polly Rutland, from whom defendant derived his title, were not the heirs at law of Drewry Williams, nor a part of them. Their mother, Mary Howell, or Polly Rutland, was one of them, and so was the plaintiff Henry Williams, the movant of that proceeding. These persons, the children of Polly Rutland, did not acquire title as heirs at law, but as devisees under the will of their grandfather. They were the persons interested, and to be affected by the proceeding. Yet they were no parties thereto, nor was any one else who was interested in defeating the judgment. These parties were not served with notice of the proceeding which was to defeat their title. They, on that question, have had no day in Court, and how then can it be said that they are concluded by it ? To have given the Court jurisdiction as to these persons, it was necessary that they should have been made parties and served. As this was not done, they were not concluded. Rogers vs. Evans, 8 Ga., 143 ; Towns vs. Springer 9 Ga., 130 ; Mobley vs. Mobley, 9 Ga., 247, et passim.

When this case was before this Court at first, it was the impression that the children of Polly Rutland were either before the Court or had such notice of the proceeding as enabled them to defend, etc. But that was not true. The proceeding not only was not against them, but they had no notice of it. Their mother, Mary Howell, and one of the heirs at law, does not seem to have had any notice; but if she had, that could not have been a notice to the children, they being of age and capable of speaking and acting for themselves.

. The decision then pronounced by Judge McDonald, must be understood as being made under that impression.—See Williams vs. Cowart, 27 Ga., 187. The Judge of the Court below was evidently misled by that opinion.