Durham v. Holeman , 30 Ga. 619 ( 1860 )

By the Court.

Lyon, J.,

delivering the opinion.

1. Before secondary evidence of the contents of a lost deed can be gone into, the existence and execution of such deed must be established by proof. This question was thoroughly investigated and fully settled by this Court in Young vs. Bigelow, decided at the March Term, 1860, of this Court at Atlanta. 1 Phil. Ev., 452; 1 Gr. Ev., sec. 558, and note. It was error, therefore, in the Court to permit a copy, from the record, of the deed purporting to be from the plaintiff to one Josiah Bradley, to be read to the jury as evidence, without proof .of the existence and execution of the original.

2. The only evidence before the Court, that the plaintiff had sold and made a deed for the land to Bradley, was that of the copy deed before referred to, and as that deed was improperly admitted, and constituted no evidence of the fact — ■ and it was error in the Court to charge the jury, that if they believed, from the evidence, that the plaintiff had sold and made a deed to Bradley, the plaintiff could not recover.

3. The certificate from the Executive Department, showing that there was no such Justice of the Peace in the county of Wilkinson during the year 1829, as John R. Wells, who appears to be a witness to the deed on record, purporting.to be from the plaintiff to Josiah Bradley, dated the first day of November, 1829, and whose name appears to such copy as a Justice of the Peace, in the absence of any other proof on the subject, was conclusive evidence that such deed was a forgery, and the Court erred in charging otherwise. When this proof was made, the onus was on the defendant to show, although there was no such Justice of the Peace in Wilkinson county at that time as John R. Wells, yet there was a Justice of the Peace in the State of that name, who attested that deed in his official capacity, that would have rebutted and overcome the effect of the certificate; but it cannot be broken down, overcome, or weakened by a mere supposition, unsupported by fact.

Upon the subject of adverse possession, the Court charged the jury, at the request of counsel for defendant:

“ That if the jury believe that the defendant commenced improving the lot of land sued for, in 1847 or 1848, and continuously occupied the same for seven years by cutting of timber, building houses, deadening land, and including portions thereof, and by cultivating the same, then the verdict roust be for the defendant — the law being, that seven years peaceable and uninterrupted possession gives a statutory title to real estate in Georgia.

“ That if defendant, by himself or by Willingham, his tenant, held one-half acre of fenced land, and deadened 30 or 40 acres of the land, built a house thereon, dug a well in 1848, and continued without interruption to thus occupy and claim said land continuously, uninterruptedly and adversely for 7 years, then his title is good to the whole lot; if you believe the whole lot was sold to defendant at sheriff’s sale in 1845, the said entry and sale being, in law, a good color of title.”

4. The cutting of timber is not such adverse possession as will even create a statutory title to land; nor will any of the specific acts or things enumerated by the Court, such as deadening the timber, clearing the land, building houses, making enclosures, digging a well, claiming the land adversely. The thing absolutely necessary to exist, to protect the defendant under the plea of the Statute of Limitations from the plaintiff’s title, was wholly lost sight of by the Court in this charge, and that is, the defendant must not only commence to improve, etc., but he must, either by himself or his tenant, go into the actual possession of the land, under claim of right, and continue in the actual and unbroken possession of the land for seven years continuously preceding the commencement by plaintiff of his suit for his recovery. It will not do for the defendant to dig a well, make a horse lot, split rails and deaden land, and then leave the land in that condition and return again after the lapse of a year or so, and then date his possession from the time he made the first improvement : in that case, the statute begins to run only from the time he returns and goes into the actual possession — not from the time he commenced to improve. Several of the witnesses testify that Holeman did make improvements on the lot in 1847, or earlier, perhaps, as enumerated by the Court; but they also positively state that neither Holeman or any one else occupied the land after these improvements were made, until Holeman, the defendant, moved on the land about Christmas of 1849. Now, if these witnesses are to be believed, the defendant’s statutory title was not complete. I am aware that there is great conflict of testimony on this point; for while one set of witnesses testified as I state, another set testifies equally positive that the actual possession commenced in 1848 and continued uninterruptedly to the bringing of the suit. We pass no opinion here as to tiie weight of the testimony, or which set of witnesses are to be believed and which of them not. The jury must pass on that question. I only refer to the evidence at all, for the purpose of showing the necessity of caution by the Court in instructing the jury on the point. The jury may have been satisfied that there was a break in the actual possession; but under the enumeration by the Court of the acts that would ripen into a statutory title, might have gone back to the first acts done and counted from that time, instead of from the time the possession commenced and continued unbroken.

The Court further charged, that if the jury believe, from the evidence, that the acts and use of the lot in question by the defendant were of such a character as to leave no doubt in the mind of Durham, if he had passed that way, that it was the purpose of Holeman to keep him out of his land, and that he was an adverse claimant, then such use and acts, in law, constitute adverse possession, and if continued seven years, will ripen into a perfect title.

5. This charge is open to the same objection; for no matter what the acts of defendant may have been, or what use he made of the lot, or what claim he asserted, if he was not in the actual possession of the lot, by himself or his tenants, openly, notoriously, and visibly and continuously for seven years previous to the commencement of the suit, under color of title and claim of right, then the statute will not protect him; that is the test, and the only one. Besides, this charge left it to the jury to determine what amounts to adverse pos.session. This is not their province. See Paxon vs. Bailey, 17 Ga., 600.

We agree with the Court, that when there is an apparent conflict of the evidence, the jury must so reconcile the testimony as to make all speak the truth, and not impute perjury to any, if they can possibly do so; but when there is a conflict irreconcilably — as there most unquestionably is in this case — if the witnesses are all equally credible, then the jury will credit those who had the best opportunity of knowing, or those who, from the manner of testifying, and the circumstances and facts upon which, their recollection, as to time, dates, etc., are based. Indeed, it is very difficult to lay down any certain rule by which the jury are to be governed. My own idea on this subject is, that as the jury are to find the truth from this conflicting evidence, and as they are, or are supposed to be, impartial between the parties, that they should find as they shall be conscientiously impressed by the evidence, let that be the one way or the other.

The Court charged, further, that “ when there is an irreconcilable conflict in the evidence resulting in reasonable doubt upon their mind, then, in this, like a criminal case, the defendant is entitled to the reasonable doubt, and the law will leave the parties where it found them.”

7. We hold the rule to be the reverse of that laid down by the Court. Here the plaintiff’s title is indisputable. jThe defendant, to avoid the force of the title, and to defeat a recovery under this plain title, pleads the Statute of Limitation in bar of that right. The onus is on him to sustain his plea affirmatively. If there be a doubt — a reasonable one— the case is against him; and I am not so certain but that the same rule would apply in criminal cases. There is much authority for it, and none against it that I know of. But in a civil ease, there is no question about the rule, and it stands to reason that it should be so. A party is not to be deprived of a plain right upon a mere doubtful claim of another.

In the Lexington Insurance Company vs. Paver, 16 Ohio, the Court recognizes the rule thus broadly: “It is the duty of the jury, in all cases, to find the truth of the fact presented to them. But if, after hearing all the evidence on the point, it still remains doubtful where the truth lies, what is to be done? We have always held, under such circumstances, it is the duty of the jury to resolve the doubt in favor of him against whom the charge'is made. For instance, after hearing all the evidence, it remains doubtful whether the plaintiff has sustained his cause of action, that doubt must acquit the defendant. So, if the defendant relies on a special plea, if it is doubtful whether the plea is sustained, a jury cannot, with propriety, return a verdict sustaining the plea.” So, in this case, if there be such a conflict in the evidence on the point whether the defendant has the statutory title, according to the rules here laid down, that the jury cannot find the truth beyond a reasonable doubt, then they must find against the plea.

Judgment reversed.