Doe ex dem. Blackwell v. Roe

By the Court.

Lumpkin J.

delivering the opinion.

The whole of the testimony offered by the plaintiff in rebuttal, and rejected by the Court, should have been admitted. The recitals in the Act of the Legislature, are certainly entitled to some consideration; still, the testimony of Robert Mitchell, is the only direct proof to the fact of the service of the scire facias, all else is but inference and presumption; and Mr. Mitchell, after such a lapse of time, deposes more perhaps, from his knowledge as an attorney, as to what ought to have been done, than any distinct recollection, as to what was actually done!

On the other hand, Nancy Bird, and those under whom she claims, and who derive title from the drawer of the land, 'have never been out of possession; that possession, notwithstanding the verdict of the jury in 1836, declaring the draw fraudulent, and the Act of the General Assembly in 183S, ordering a sale of the land, was never disturbed until 1853; in other words, no attempt was made to execute the judgment of the Court, until sixteen years after it was rendered; and during all this time the occupation of the land, by the adverse claimant, was acquiesced in.

In weighing, then, the testimony in favor of the plaintiff, which was offered to perfect this record, the jury are at liberty to look to the length of the defendant’s possession, since the proceedings were had under the scire facias-, and the failure to enforce the judgment, as circumstances from which they have a right to infer, that Nancy Holland never was served with the scire facias, and without service, the judgment of condemnation is a nullity.

The nunc pro tunc order, substituting the copy scire facias for the original, would not strengthen the plaintiff’s case, because there is no entry of service upon it by the Sheriff. The copy from the record is sufficient for all that it proves; under the nunc pro tunc order it could establish nothing more.

As it respects the requests to charge, and the charges as given, we would say: that while the jury might infer from the verdict, that the pleadings were regular, it is not conclusive by any means, of the fact, even after the lapse of twenty years. Still we are not prepared to sustain the Court in ruling that service could be proven only by record evidence.

Finally, we concur with the Court, that the recitals in the Act of 1838, were not conclusive, unless rebutted, that Nancy Holland was served; and for the very obvious reason that the fact that she was served, the very thing in dispute is not recited or assumed to be true in the Act. Nevertheless, we repeat, the Act is worth something, because it is based upon the general assumption, that the lot of land was regularly and legally condemned as having been fraudulently drawn.

Judgment reversed.