Chatman v. Hodnett

Beck, J.

1. “When a certified copy of a recorded deed is offered in evidence, and is met by the affidavit of forgery provided for in the Civil Code, § 3826, the burden is upon the party offering the deed to show the existence and genuineness of the original, without reference to the fact that it appears to have been recorded. And this is true notwithstanding it appears from the certified copy that the original was more than thirty years old.” Bentley v. McCall, 119 Ga. 530.

2. The evidence in the present case offered by the defendant to establish the existence and genuineness of the original deed was not sufficient to authorize a jury- to find for him upon that issue, and the court did not err in directing the jury to find a verdict against the defendant upon said issue.

3. It appearing that prior to the bringing of the present suit, upon the trial of an action of ejectment for the recovery of the land now in controversy, there had been a verdict returned and a judgment rendered against the defendant and certain codefendants in favor of' this plain-' tiff, the record in said action of ejectment (said record consisting of a petition, plea, verdict, and judgment) was admissible in evidence against the present defendant, there being no evidence to sustain the defendant’s contention that he was only a nominal party to the last-mentioned proceeding.

4. The defendant having offered an amendment to his plea, setting up two distinct defenses, one being that the judgment in the action of ejectment referred to “was obtained by fraud of the plaintiff in said ease,” and the other setting up the contention that' he had in good faith erected permanent and valuable improvements upon said land, and praying that he be allowed the value of said improvements in case the plaintiff was entitled to recover, and the court having disallowed that part of the amendment embracing the plea of fraud “in obtaining the judgment aforesaid,” an exception to said ruling, assigning error thereon, can not be considered, inasmuch as the amendment is neither embodied in the bill of exceptions nor attached thereto as an exhibit.

■5. The foregoing disposes of all the assignments of error in the bill of exceptions which are urged in plaintiff’s brief.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.

Evidence was submitted on the other issues; and the court admitted in evidence, over objection, the record of the former suit referred to in the third division of the foregoing decision, counsel for the defendant objecting to it on the grounds that it did not show that the parties in that suit and in the present suit were the same, and that it did not show that the same title was relied on by the plaintiff in each. The court directed a verdict in favor of the plaintiff for the premises in dispute. The defendant filed two bills of exceptions, one of them assigning as error the rulings on the trial of the issue of forgery, and the other excepting to the other rulings stated.

D. B. Whitaker and W. 0. Wright, for plaintiff in error. Frank 8. Loftin and B. D. Jackson, contra.