Tison v. Yawn , 15 Ga. 491 ( 1854 )

By the Court.

Lumpkin, J.,

delivering the opinion.

[1.] Was the Court authorized to grant its mandate, directing interrogatories to issue for Jacob Tyson ? In other words, was it made to appear, by the oath of the defendant, or othertvise, in the language of the Act of 1847,- that the testimony was material; and that the questions propounded were pertinent ?

It will be remarked, that Jacob Tison is one of the lessors of the plaintiff. Now, the object of this testimony was, as the record discloses, to prove by the party himself, whose name was thus used, either that he never existed, or that he was dead before this suit was brought! That the proof, if procurable, (?) would be material, there cannot be a doubt. It would defeat a recovery under this count, in the writ. The Judge was unquestionably right, therefore, in allowing the commission to issue, leaving to the applicant the more difficult task, as it would seem, of establishing by the witness his own nonentity, or subsequent demise.

[2.] Should a non-suit have been awarded ?

While we re-affirm the position heretofore occupied by this Court, that it is competent to grant a non-suit) whero there is no proof to support the issue—

[3.] Still, we maintain, that if there be any evidence, upon which a verdict could be rendered, the case should not be withholden from the Jury.

[4.] Nor do we recognize the rule, that if, after verdict, the Court would grant’a new trial, because the verdict was contrary to evidence, it is bound to award a non-suit, on motion, before ■trial. Such a doctrine would be an unwarrantable encroachment upon the province of a. Jury.

A motion for a non-suit, at Law, is like a demurrer in Equity. And if, admitting all the facts proved, and all reasonable deductions from them, the plaintiff, on all the proof, ought not to recover, the non-suit ought to be ordered.

Wé are aware that there is a conflict of authority, upon this point, in this country. (Elmore vs. Grimes 1 Peters. 471. De Wolf vs. Roland et al. Id. 497. Hunt vs. Stewart, 7 Ala. 525. Martin vs. Webb, 5 Pike, 72. St. Louis Floating Dock Insurance Co. vs. Souland, 8 Missouri, 665. Wells vs. Gates, Id. 681. Booe vs. Davis, 5 Blackf. 115.) But we think, that with the limitation on the exercise of the power, adopted by this Court, a peremptory non-suit should be allowed where a party has wholly failed to make out his case; especially as our own Statutes seem to recognize such a power in the Courts, as that of compelling non-suits. (Cobb’s Digest, 48, 492, 486, 488, 493.)

Was there, then, testimony in this record, apart from- the grant or paper title sufficient to carry this case to the Jury ? It .is in proof, that Baldrée went into possession of the premises in dispute, in 1841, holding expressly as the tenant of the Ti-.sons; that Yawn,. the defendant in ejectment, gave him ten dollars for his claim, both of them still acknowledging paramount title in the plaintiffs. But more than this, when Turner purchased of the Tisons, Yawn said to one of the Tisons, he would never get his pay, and offered him two hundred dollars for the land. Upon the doctrine of tenancy, then, shall he be permitted to deny this title ?

[5.] Lastly. The grant was tendered in evidence; it was to Jacob Tison. The depositions of Grimsley were offered, to explain the grant, and to show that it should have issued to ■ Joab Tison. This parol proof was rejected; and the Court 'held, upon the authority of Sykes vs. McRory, (10 Ga. Rep. 665,) that the mistake in the grant, could not be corrected in this way. In other words, that a party claiming under a grant, -cannot first raise an ambiguity, by parol, and then explain it in the same way; but that a direct proceeding, by bill or otherwise, should be instituted for that purpose.

Precedents may be found on both sides of this practice, as was admitted by this Court, in the case cited. And there are plausible reasons, to sustain either view of this question. We are inclined, however, to adhere to the opinion already expressed, namely: that the better course is, to institute a direct proceeding, to correct the mistake in the grant.

It would seem that a grant from the State, which is the foundation or first link in a chain of title to real estate, which is to extend through all future time, should be treated with more solemnity than ordinary, documents. Real estate can only pass by deed; and these muniments of title, which are recorded as notice to all the world, of their contents, as well as the factum of their execution, should speak the truth. The correction, as to the misnomer, then, should not only be made to meet the exigencies arising out of the trial of the pending ejectment, but to secure the title, forever, from impeachment.

[6.] If the rights of third persons have not intervened, the Governor can make the correction; otherwise, it can only bo ascertained, in a judicial proceeding between the litigating parties, in which the judgment or decree to be rendered, will enable the Executive to make the alteration. And then, it will be notice to everybody. Until this adjudication can be had, the action at Law can be restrained; then, the cloud will-be-removed from the title.

Mr. Grimsley must die, as will, in tho course of nature, all who could explain this error. The title to this tract of land, may be litigated a thousand years hence. Is it not desirable that there should be record evidence perpetuated, establishing who was the actual drawer of lot No. 104, in the 7th district of-what was originally Early county ? And are not these and-numerous other reasons, which will readily suggest themselves, sufficient to justify this Court in maintaining the ground already taken, that for the correction of this mistake, in the name of the grantee, a direct proceeding should be instituted ?

So far, then, as it was proposed, by this proof, to explain the mistake in the grant, we think the testimony was rightfully rejected ; but for another purpose, a portion of it, at least, should have been admitted.

[7.] It is a principle of law, that if the attornment of tho tenant is procured by tho misrepresentation of the landlord, as to his title, that the tenant will not be estopped by it. Now Mr. Grimsley proves, that in the conversation between Yawn, or Baldree and the Tisons, this mistake in the grant, as to tho baptismal name of Tison, the grantee, was distinctly mentioned So that there was neither- the suppression of truth, nor the suggestion of falsehood, respecting the matter.