Gardner v. Granniss , 57 Ga. 539 ( 1876 )

Bleckley, Judge.

Cook acquired the land by grant from the state, and was the common source from which both parties claimed to have derived title. The plaintiff’s chain commenced with a deed from Cook to Fergerson, dated in 1834, and recorded, on a defective probate, in 1837. The genuineness of this deed was in question. The defendants’ chain commenced with a deed from Cook’s administrator to Williams, dated and duly recorded in 1852. The action was commenced in 1858 against Herron, who died in 1870, and whose representatives have never been made parties. The Gardners were brought in as parties defendant, at the plaintiff’s instance, in 1871.

1. The Gardners resided in Richmond county.' In the first, and again in the twelfth ground of the motion for new trial, the point is presented, that such residence deprived the court in Leeof jurisdiction as to them. The first ground-makes the further point, that the service upon them was not valid. But they had appeared and pleaded to the merits, without objecting either to the jurisdiction or the service. At the trial, they were too late with these objections. We do not intimate that urging them at the first opportunity, would have been attended with success. Ejectment has to be brought in the county where the land lies, and generally the recovery of mesne profits must be had, if had at all, in the same abtion : See Code, sections 3403, 5119, 3356, 3357; 22. Georgia Reports, 572, with which compare 19 Ibid., page 30. The right to introduce new defendants, pending action, seems to be without restriction as to their residence : Code, section 3360.

2. The first ground of the motion for new trial complains, moreover, that the action was discontinued as to the original defendant, and in that state was tried as to the Gardners. But these latter were committed to the case, as a case against themselves, when they became parties and pleaded to the merits. Not until after that occurred, was the case “ discontinued,” as it is called in the record, with respect to the former defendant. When the Gardners were upon the record as parties and at issue wih the plaintiff on the merits, they were parties, to all intents and purposes; and they did not cease to be so, though the action was allowed to drop as against the deceased and his estate. Ejectment can be tried as to defendants who are alive, without calling in the representatives of a deceased defendant: 13 Georgia Reports, 282; 44 Ibid., 514 ; Code, sections 3441, 3444. If it should be thought that the general rule stated in the latter of these two sections of the Code, does not apply to ejectment, because this class of actions is specially provided for in the former section, the criticism may be accepted with little or no detriment to our present ruling, which is based chiefly on the fact, that, though the original defendant was already dead when the Gardners were brought in, they suffered themselves to become parties without objection, and made up for trial issues between themselves and the plantiff which could be fully and correctly tried without other parties, especially without the representatives of their own own overseer.

3. The seventeenth ground of the motion for new trial, relates to alleged errors embraced in a bill of exceptions filed and entered pendente lite. These matters grew out of the special issue of forgery, raised and tried whilst the deceased defendant was living, and before the Gardners were brought into the case. For the trial of that special issue to be reviewed, it is essential that the parties to it should be here, by themselves or their legal representatives. Death has removed one of them, and his place cannot be filled, except by his executor or administrator.

4. The special issue of forgery involved the deed from Cook to Fergerson, one of the deeds essential to the plaintiff’s ultimate recovery. The issue was found in favor of the deed. The admissibility and effect of that finding, in the subsequent trial of the main case, are points presented in the seventh ground of tiie motion for new trial, and in the fourth request to charge, set out in the eighth ground, and in the charge as given, set out in the nineteenth ground of the motion. The Gardners, it will be remembered, were not parties to the suit, or to the special issue, when the latter was tried, and there is no evidence that they had concerned themselves with the litigation or taken any part in its management. The same reason which prevents them from having this writ of error applied to the proceedings that took place on the issue of forgery, prevents them from being affected by those proceedings, or by the verdict rendered in the same. Not being entitled to purge the result of error, supposing it to contain any, they are not bound to abide it. If they had voluntarily become parties, they might be held to have adopted the case as they found it ¡ but they were brought in by the plaintiff, who seeks, not only to recover of them the land, but to make them liable for mesne profits. Though a recovery of the land from the original defendant might have been a recovery thereof as to them also, (see 47 Georgia Reports, 540 ; 53 Ibid., 94,) the like rule would not hold as to mesne profits. A judgment for these against their overseer could not have been collected out of them or their property. The truth is, that when a plaintiff in ejectment discovers that his suit is against a mere tenant, overseer, or agent, he has the option to bring in the defendant’s principal or landlord, or not, as he may elect. And if he desires to bind the latter, conclusively, even by the final judgment as to the possession or the title, it would be far better to bring him in, when 'practicable, before that judgment is rendered. If, moreover, he seeks to bind or affect him by an interlocutory verdict, order or judgment, he should summon him early enough to let him be heard in resistance to the making of it. We think the finding of the jury on the issue of forgery, was not even admissible evidence against the Gardners after the main case had been discontinued as to the overseer. The plaintiff should not be permitted to take the full fruits of a full trial, and yet try only in part. Nor should he try some of his case with one defendant, and the balance with others, without the presence of the first or of his legal representatives.

5. The second ground of the motion for new trial relates to the affidavit of Sarah Cook. Her evidence was introduced by the Gardners to prove the deed a forgery. The plaintiff, to contradict her or affect her credit, read in evidence an affidavit made by her, and which had been used in this litigation by the deceased defendant to sustain his application to require the deed to be filed in the clerk’s office. It was admitted (probably because it had been so used) by the court, though proof of its execution was not made, and though no foundation for it as impeaching evidence was laid ; that is, as we infer, it was not exhibited or read to her, nor was her attention called to its contents. As the affidavit purported to have been made in this state, it needed no proof of execution other than that afforded by the official attestation of an officer authorized to administer oaths. But unless the statements in i were “made under oath in connection with some judicial proceeding,” the foundation should have been laid : Code, section 3872. That making the affidavit was connected with a judicial proceeding, would not be inferable from the use of it; unless the use had been by the person or persons now to be affected by the inference. Such an affidavit is not like answers to interrogatories, which latter, being necessarily made in connection with some judicial proceeding, would fall within the terms of the Code, whether ever used in the proceeding or not. The affidavit now under consideration, may have been made with no reference to this or any other case, but being in existence and adapted to the purpose, may have become connected, for the first time, with the proceeding, when it was used or filed.

6. The third ground of the motion for new trial makes the point, that, when there is in evidence a certified copy of a deed, taken in 3853, from the record since destroyed, parol evidence is not admissible to show, that, in 3853, a defective probate, such as now appears on the original deed itself, was upon the record ; that both the deed and the probate -were recorded together. The officially certified copy, made in 1853, gave no probate, and was silent as to any. The witness who read the record in 1851, read the probate as well as the deed. We do not see that there is here any inconsistency or contradiction. But suppose there was, is the record of a deed without probate, or even with a defective probate, an official record at all ? And if not, can the contents of the record be proved, before or after destruction of the book, by a certified copy? Can the clerk authenticate the copy of a record which the law did not authorize him or his predecessor in office to make? Instead of the copy now said to be superior to the parol evidence being the exclusive evidence of what appeared in the book, a grave question might be raised whether its rank is not lower, instead of higher, than that of the parol evidence: 11 Georgia Reports, 636.

7. The thirteenth ground of the motion for new trial complains of the reception in evidence of Cook's will, executed later than the date of the deed to Pergerson — the deed said, to be a forgery. The will disposes of other land but is silent as to this. The reason of the silence might be, that he had conveyed the land by the deed in question. True, it might be something very different; as, that he forgot some of his property, or desired to die testate as to some but not as to all. Though the will may be slight evidence, we think it was relevant, and therefore admissible: 44 Georgia, 515, (2.)

j 8. The fourth, fifth and sixth grounds of the motion for new trial, make the question whether there was evidence enough, and of the right kind, to admit the disputed deed in evidence as an ancient document. The deed, if genuine, was less than thirty years old when the action was brought, but | was past that age'at the time of trial. The competency of evidence depends, as a general rule, on the state of things at the time it is offered and received. A court does not usually say, this was not evidence heretofore and therefore cannot come in now, or, this was admissible once and therefore is admissible still. A witness once incompetent may become competent; a document not well authenticated may be better authenticated; a particular fact, in one state of circumstances,' may be no evidence, and in another and later state, the best of evidence. At the time of trial, the deed was old enough i to testify for itself, and not until then did it come forward to \ make its testimony heard. Till fit to speak, it was silent. It came from the proper custody, and Avas fair on its face. The handwriting of one of the subscribing witnesses was proved; that is, his attesting'signature was shown, presumptively, to be genuine. There was, on the deed itself, a defective probate by that witness, or purporting to be by him. On the deed, too, Avas an entry of recording, dated more than thirty years before the trial, and both written and signed by the clerk who was in office at the time the entry bore date. True, i the other subscribing witness was alive and accessible; inj fact, Avas examined by the adverse party in opposition to the deed. But aatus it necessary to call her to prove the deed, in addition to, or in place of, the corroborated evidence adduced?' Because one of the subscribing witnesses to an ancient deed can be produced, or is present, must he be examined ? Must he be examined, though the deed be ancient, and though it be known that his testimony will tend to overthrow, rather than to establish it? There seems to be some authority to the contrary: Code, section 3837; 3 Phil. Ev., Cowen & Hill, note 937, p. 1356; Ibid., note 910, p. 1396. What a sub- ’ scribing Avitness testifies may be contradicted: 18 Georgia Reports, 40, 350. The point was urged that actual possession of the land at some time under, or in pursuance of the deed, would be necessary to admit the writing as an ancient document. That might be so if the good appearance, the date^ and the custody, of the paper Avere all. But in this case there \ was more; there was satisfactory evidence that the deed ac- ] tually existed and had passed through the clerk’s office more / than thirty years before the trial, and there was some evi- j denee, such as the handwriting of an attesting witness, tend- / ing to sIioav actual execution. Besides, it appeared that thereJ Avas no adverse possession at the date of the deed, nor for nineteen years thereafter. The folloAving authorities may be consulted on this question : 1 Kelly, 551 ; 8 Georgia Reports, 201(3); 12 Ibid., 267; 13 Ibid., 523; 23 Ibid., 406; 29 Ibid., 355; 31 Ibid., 593; 33 Ibid., 565; 43 Ibid., 346 to 852; 49 Ibid., 165; 3 Phil. Ev., Cowen & Hill’s Notes, pp. 1310 to 1316, note 903. The admission of the deed in evidence, would not be decisive of its genuineness. The jury might still, viewing it in the light of all the facts, think it not genuine, and find accordingly.

9. The first request to charge, and the equivalent thereof at the close of the fourth request, both stated in the eighth ground of the motion for new trial, should have been recognized as sound law. If the deed was a forgery, the plaintiff’s line was broken, and defeat was inevitable.

10. In the eighth ground of the motion for newr trial, the third request to charge relates to the effect of recording a younger deed in 'due time, where there is an elder not duly recorded. It concedes that notice of the elder would prevent the younger from taking so as to be a source, or vehicle of title to another purchaser, if he, also, had notice. The real point the request makes is, as to what constitutes or is evidence of notice. It denies that reading, or hearing of, a record of the elder deed will suffice, if the recording took place upon an insufficient probate, such recording being extralegal, or unauthorized, and'the same as none. The subject comes up again in the court’s charge set out in the nineteenth ground of the motion for new trial. We think the court was substantially correct; and that whatsoever would placea man of ordinary prudence fully upon his guard and'induce serious inquiry, would amount to notice, or be evidence from -which the jury might infer it: 25 Georgia Reports, 277 ; 55 Ibid., 438; Code, section 2790. Perhaps the court should have left the sufficiency of the facts more distinctly to the jury, instead of declaring, as a matter of law, that such or such would be sufficient. Of course, the record upon defective probate, unless actually seen or heard of, would count for nothing. The mere existence of such a record, would not put any person on inquiry who was not informed of its existence: 7 Georgia Reports, 432; 11 Ibid., 636; 13 Ibid., 443, (5.) The difference is, that when a deed is well recorded, everybody must be presumed (o know of the record, for certain purposes; but when not well recorded, the presumption of ignorance holds, until actual knowledge or information of the record is clearly proved.

11. Prescription, or the statute of limitations, is dealt with in the eighth ground of the motion for new trial, (fifth and sixth request to charge) and in the nineteenth ground of the motion, which sets out the charge on that subject, as the court gave it. We shall speak-of the sixth request under another head. The fifth was correctly refused ; and the charge given was not less favorable to the defendants than.it should have been. Perhaps, in some minor particulars,-it was more so. If the action was originally against the overseer or the tenant of the Gardners, the possession against which it was aimed could not, while the action was proceeding for the express purpose of putting an end to that possession, count in their ’ favor as part of the means of defeating the action. The possession was, so to speak, sued; and if it was their possession, whoever held it for or under them, was a proper person to name as a defendant, whether they, also, were named with him or not. If the suit was an attack upon their possession, they. having no possession except that in which they were represented by the overseer or tenant when sued, it would never; so far as prescription or limitation is concerned, be too late to make them parties, so long as that suit was pending. However late they might come or be brought in, it would still be a suit applying to the same possession which existed at the time it was originally commenced; that is, their possession, then held by their tenant or overseer, though now held, it may be, directly by themselves in person: See 47 Georgia Reports, 540.

12. How far back the reach after mesne profits might extend, is one of 'the questions raised in the twelfth ground of the motion for a new trial, and further dealt with at the close of the court’s charge in the nineteenth ground. Evidence, it seems, was admitted covering a considerable period of time anterior to any connection by the Gardners with the premises, or with the title under which they claim. The court’s charge, however, seems to contemplate that profits as far back as to the commencement of this suit, and no farther, were to be considered. The rule is stated in 47 Georgia Reports, 540, touching profits and improvements ante-dating the claim of title by a defendant. Of course, a defendant who takes no credit for improvements made prior to his own time, is not chargeable with profits enjoyed by his predecessors. It is equally clear that if he does take credit for their improvements, all profits chargeable to them, or to those of them who erected the improvements, should first be deducted.

13. In the state of the pleadings, the court was certainly correct in permitting profits to be computed from the commencement of the action; that is, if the plaintiff was entitled to recover at all, and if the original defendant, as seems to be well established, was in as overseer of the Gardners, and held alone for them when the action was brought. To protect themselves from accounting for all the profits, whether accruing before or after the commencement of the action, which they had taken, directly by themselves, or indirectly through another in their employment, on the ground that, by reason of delay to make them parties, a portion of the profits had, as to them, become barred by the statute of limitations, the statute, as applicable to mesne profits, should have been pleaded : Code, section 3058 ; 46 Georgia Reports, 120. How far, under the circumstances, such a plea would have been available, we do not decide. It is enough to say, that, in the absence of the plea, the charge was not error.

14. We fail to perceive any merit in the ninth ground of the motion fo'r new trial, which suggests that the question of mesne profits is entirely out of the case if, by reason of improvements erected by the defendants, the land is more valuable now than it would have been if it had been let alone. This would, indeed, be a novel principle to establish between parties in ejectment. With improvements adding permanently $1 00 to the value of the premises, and no deterioration of the original estate, in the meantime, a false claimant might enjoy a plantation, or, it may be, a whole county, for years, free of rent. There must be some mistake of law where such a proposition is accepted, or deemed acceptable: Code, sections 2906, 3468; 39 Georgia Reports, 328.

15. The requests to charge are all in the eighth ground of the motion for new trial. Most of them have been sufficiently disposed of in the preceding paragraphs of this opinion. They may now be passed over rapidly. The first request is good law; the second is sound in part, but for the most part, unsound or inapplicable. The third closes wrong whether it opens correctly or not. The fourth is substantially sound, but why instruct the jury that a party could submit evidence? The fifth begins well, but ends ill. The sixth does not accurately put a case of adverse possession, (Code, section 2679,) even if it were otherwise unobjectionable. Further elaboration, would be both tedious and unprofitable.

Judgment reversed.