Goodtitle ex dem. Bond v. Roe , 20 Ga. 135 ( 1856 )

By the Court.

McDonald, J.

delivering the opinion.

• The Court w'as right in granting a new trial in this case. "The verdict was manifestly contrary to evidence.

[1.] On no one of the five demises laid in the declaration ought the Jury to have found a verdict in favor of the plaintiff.' Elizabeth Bond had been dead for nearly thirty years, at the date of the demise from her; no title was offered to sustain the demises from either Gaines Thompson or "Eppy W. Bond.

[2.] The deed to J ames Patillo showed that he had no title at the commencement of the suit; and the evidence is plain, that the Court of Ordinary of Elbert County had no jurisdiction to grant letters of administration on the real estate of his intestate, she having been a resident of Eranklin County at the time of her death. The copy will is evidence that she resided in Elbert County at the'time the will was made; (and it is not conclusive of that;) but it is no evidence that she resided in that county at the time of her death. The proof is all the other way, on that point, to-wit: that at that time, she resided in the County of Franklin, and overcomes the unquestionable legal presumption of jurisdiction which always arises upon the act of the Ordinary, standing alone.

[3.] If the verdict of the Jury was predicated on the title of Patillo, derived through the administrator, or on the title of the administrator, Eppy W. Bond, it was contrary to the evidence, on the point of jurisdiction of the Court of Ordinary of Elbert County, and against the charge of the Court, as stated in the fourth ground of the motion for a new trial, there being no ground, whatever, for a finding for the plaintiff on any of the other demises.

[4.] The Court is not bound to exclude evidence, though inadmissible, unless objected to, and the grounds of exception are stated. The party or his Counsel being before the Court, may be considered as waiving objections, if he fails or refuses, to specify them; but if evidence clearly inadmissible, and objected to when offered, is admitted, it is error, unless the particular objection made be such as ought not to bo sustained, and the sustainable objection is not made.

[5.] If the party or his Counsel except to the admission of evidence on specified grounds, he must be presumed to have Waived all others.

[6.] If the record shows that exception was taken, but does' not disclose either the ground, or that there was no ground Specified, and the Court admits the testimony, it will be presumed, here, that the objection was made on proper grounds, and the question will be considered as though the ground had been taken, on which it appears in the record, the evidence ought to have been rejected. The deed to Patillo ought not to have been received in evidence, under the Act of 1802. It was objected to, but the ground of objection does not appear in the record. But the record shows that no title accrued to him until long after suit was brought, and that it was inadmissible to support a demise alleged to have been. made before the suit was brought; and that under the allegations of the declaration, the plaintiff could not claim title. to the premises in that action, under a demise from Patillo, founded on that deed.

The Court below sustained the motion for a new trial on. ••all the grounds taken by defendant in error. Although the judgment of the Court must be affirmed, because a new trial ought to havo been granted on the grounds already considered, still, we think the decision, in some of its parts, was erroneous.

[7.] If the administration granted in Elbert County had been legal and valid, the plaintiff ought, unquestionably, to •have recovered on the demise from the administrator. The intestate owned no unadministered property but the land sued for, and that was to be distributed amongst the heirs at law. Executors and administrators may sell land by order of the. Court, when it is for the benefit of the heirs and creditors; :and it is always manifestly for the benefit of heirs, where there .are' many distributees, that a sale should be made for distribution and the proceeds divided, rather than that the land, itself, should be partitioned into small parcels, allotting a part to each of numerous heirs. Under such circumstances, an heir, or a person claiming under an heir in possession, is no more to be regarded than a stranger. Carruthers vs. Bailey, (3 Ga. Rep. 111.) In such a case, the administrator may recover before an order to sell, and independent of .-an order. His right does not depend on the order.

[8.] The defendant had purchased an estate in the land of .some of the heirs, but not from all. These purchases were all made after the suit was commenced. He did not enter under them. His entry was under a trespasser. He was, lumself, a trespasser, and worse, for knowing that Acre was .a trespasser and did not claim title, he purchased and got a quit claim deed to build up a title against the rightful owner.. The administrator represented the interest of all the heirs at law, and no one of them had the right of exclusive possession. -A trespasser going into possession under a known fraudulent title, got no better title by his purchase from the heirs , at law ■than those heirs had. The administrator has the power of •sale under the authority of the Ordinary, and is entitled to ■.the possession; and the case now under consideration presents a strong instance, not only of the benefit to the heirs of a sale, but also of tlio necessity of having the possession to make an advantageous sale. To sell advantageously, the vendor must have the power to deliver the possession. To enable him to do this, he must have the entire possession; and an heir has no right to enter into the possession and hold it against the administrator, to the injury of his co-heirs; and a purchaser from heirs cannot be in a better position.

£9.] The facts of this case do not authorize the charge as requested, that the Jury, if they saw proper, might infer a former administration upon the estate, and upon that, find for the defendant. There never had been a possession of the premises under a claim of right. The defendant had no right to claim any benefit from an administration, if one had been presumed or had been proven to have existed ; for the origin of his title was too recent and notorious to be purified or strengthened by legal presumptions.

Judgment affirmed.