Durden v. Kerby

1. "Surveys or plats of land made by the county surveyor, under order of court, and on notice to all the parties, of lands within his county, signed by him officially, and stating the contents, courses, distances, of any land surveyed by him, are presumptive evidence of the facts, if all the requisites of the law touching such surveys and the reports thereof are complied with." Code, § 23-1112.

2. While a plat or survey is not admissible as substantive, presumptive evidence of the facts set forth therein, unless it conforms to the provisions of the above Code section, it may nevertheless, upon being verified by other oral testimony as correct, be admitted as a part of such oral testimony for whatever it may be worth, for the purpose of illustrating such other competent testimony with respect to the location of the land in controversy; and where a plat was neither offered nor admitted as an official document such as contemplated by the Code section mentioned, the sole objection that it did not conform to the requirements of that section is without merit.

3. The charge of the court set forth in the second division of the opinion requires the grant of a new trial.

(a) The remaining assignment of error, dealing with the eligibility of a juror, being of a nature not likely to recur upon a retrial of the case, no decision is made on this question; nor is any made on the general assignment of error dealing with the sufficiency of the evidence to sustain the verdict.

No. 15681. JANUARY 9, 1947. B. R. Durden brought an equitable petition in Emanuel Superior Court, seeking to enjoin Malcus Kerby and others from cutting timber and otherwise trespassing upon a specified 75-acre tract of land, alleging the defendants' insolvency and claiming irreparable injury. The plaintiff by his pleading and evidence sought to show title and possession in himself by virtue of a deed executed in 1905 from Mary Connell, and purporting to convey a 75-acre tract of land, which he contends included a 51-acre parcel known as "Government Lands," the latter constituting the land in controversy. The plaintiff by his evidence sought to prove, in addition to paper title, prescriptive title to the 51 acres. The defendants by their answer and proof denied the contention of the plaintiff, and sought to show that his deed did not include the 51 acres in controversy, and that in 1898 Steven Boyd had conveyed to Malcus Kerby (defendant) the 51-acre tract of "Government Land," and that Kerby had immediately built a house thereon and had been in exclusive possession ever since; that in 1904 Steven Boyd conveyed to Mary Connell 36 acres only of a 75-acre tract known as the "Steven Boyd Home Place," which deed gave as its southern boundary the "Government Lands" here involved; and therefore that in 1905, when Mary Connell conveyed to Durden (plaintiff) a 75-acre tract of land purporting to include the 51-acre tract of "Government Land," the defendant (Kerby) had title and was in possession of the "Government Land." On the trial, both the plaintiff and the defendant introduced deeds to the property in question, and each claimed paper title and prescriptive possession to the exclusion of the other. The jury returned a verdict in favor of the defendants, and a bill of exceptions was taken from the order overruling the plaintiff's amended motion for new trial. 1. Error is assigned upon the admission in evidence of a certain plat, over the plaintiff's objection that no certificate was attached showing that it had been made by a surveyor or by whom it had been made, and that the document was prejudicial to the plaintiff because the jury was forced to consider it as a properly authenticated plat.

The Code, § 23-1112 (set forth in the first headnote), deals with surveys or plats of official origin, and when such surveys or plats conform to the provisions of that Code section, they are admissible as "presumptive evidence of the facts;" but unless a survey or plat is of official origin and meets the requirements of the Code section mentioned, it carries no presumptive value as evidence of the facts, although, if verified by oral testimony, it is admissible as a part of and as illustrative of such oral testimony for whatever it may be worth. Maples v. Hoggard,58 Ga. 315; Bunger v. Grimm, 142 Ga. 448, 450 (4) (83 S.E. 200, Ann. Cas. 1916C, 173); Bower v. Cohen, 126 Ga. 35 (4) (54 S.E. 918); Parker v. Salmons, 113 Ga. 1167 (3) (39 S.E. 475); Acme Brewing Co. v. Central Ry. c. Co., 115 Ga. 495 (5) (42 S.E. 8).

The above rule is in accord with the generally accepted practice of admitting plats or diagrams for whatever they may be worth; not as original, independent evidence, but on the theory that they are nothing more than verified pictorial representations of matters about which the witness has properly testified, and as being a desirable expediency by which to illustrate the witness's testimony as to the location of the land thus represented. Brantley v. Huff, 62 Ga. 532; Napier v.Little, 137 Ga. 240, 249 (3) (73 S.E. 3, 38 L.R.A. (N.S.) 91, Ann. Cas. 1913A, 1013); Bradley v. Shelton, 189 Ga. 698 (5) (7 S.E.2d 261). See generally, in this connection, 3 Wigmore on Evidence, §§ 790, 793.

In the instant case, Malcus Kerby testified with reference to the plat as follows: "This plat that is shown me by counsel is the land that I built the house on, and Mr. Durden (plaintiff) helped me to build it by hauling the lumber, and this is a plat of that piece of land. I don't remember why this plat was made; but it was made to show the tract of land. The plat was made shortly after the deed. This deed was made in 1897 or 1898 one, I don't remember. As for what purpose it was made, well, the old man wasn't satisfied at the amount of acres until he had it run out, so he could collect the price per acre for it. Now as to the fact in regard to this land that I bought under this deed from Steven Boyd — the fact is he deeded me the plat, had the surveyor to make the plat."

It does not appear from the record that the plat bore no notation or other data which would indicate that it was official in character; and it will be readily observed from the above-quoted testimony that the plat was not offered as an official document, but on the contrary was specifically designated as being of private origin. Since the plaintiff objected to the plat solely on the ground that it failed to meet the requirements of an official plat, and since it is not made to appear from the record that the court admitted the plat for any purpose other than to be considered by the jury, for whatever it may have been worth, together with and as illustrative of the defendant's oral testimony, the verdict and judgment are not subject to be set aside on the exception taken.

2. Exception is taken to the following portion of the charge of the court: "That this is the whole crux of the case. Did Mary Connell have title in 1905? Did she hold under a deed and did that deed embrace this particular tract of land, and if she had title and her deed covered it, Mr. Durden can recover. If she did not, then he can not recover." As is shown by the statement of facts, the issues made in this case included not only the question as to whether or not the plaintiff was entitled to recover under his deed from Mary Connell, but also whether or not he was entitled to recover under the theory of possession for seven years under color of title, or under the theory of prescriptive title by adverse possession for twenty years. An examination of the charge shows that an instruction very similar to the one excepted to had been given in a previous portion of the charge, immediately after which the court used this language: "I charge you also that under the law of prescription a person may have title by prescription, there are two kinds" — the judge then going on to explain prescriptive title. While it might properly be said that the previous instruction was cleared up by the instruction given immediately following and in connection therewith, it appears that the language which was used later, and which forms the basis of the exception, was in no way thereafter qualified, and being both emphatic and all-inclusive, in that it stated that the proposition of law then set forth constituted the "whole crux of the case," we think that the jury might reasonably have been unintentionally misled so as to deprive the plaintiff of the benefit of his other contention.

Judgment reversed. All the Justices concur.