115 Ga. 494 | Ga. | 1902
The Central Railroad and Banking Company brought an action of ejectment against the Acme Brewing Company, to recover “part of lot 2 in block 12 in the southwestern commons of the city of Macon, as fully described and laid out by Augustus Schwabb, city engineer, in the map and survey made by him of that portion of the city of Macon known as the southwestern commons of said city, said map being made in October and November, 1851, and being the official map and survey of that portion of the city of Macon,” the tract sued for being also described by metes andfbounds, and including an encroachment upon Hammond street, which was one of the boundaries of the same. There was also a count for mesne profits. ■ In addition to the plea of not guilty, the defendant pleaded prescriptive title based upon adverse possession, under a bona fide claim of right, by it and its predecessors in title, for more than seven years, under written evidence of title; and also that it and its predecessors in title went into possession of the premises sued for in good faith, and, while in the bona fide possession thereof, made permanent improvements thereon Of the value of $20,000, and that the land, independently of these improvements, did not exceed in value $300, and had no rental value except such as might be given it by reason of the improvements thus placed upon it. It prayed that, if its title was held not good, the value of the improvements should be set off against the value of the land, and that the plaintiff be required to pay it the value of these improvements. Upon the trial the jury returned the following verdict: “1st. We the jury find for the plaintiff. 2. We find four hundred dollars for land in dispute for plaintiff. 3. We find for the plaintiff fifty dollars per year from March 26th, 1891, to date, for rent. 4. We further find the title to vest in defendant when the above has been complied with.” The defendant made a motion for a new trial, which was overruled, and it excepted.
In addition to the general grounds in the original motion for a new trial, there were numerous special grounds contained in an amendment thereto. The first of these special grounds alleged that the court erred in admitting in evidence “ a certified copy, from the record of deeds of Bibb superior court, of a deed made by the Mayor and Council of the City of Macon, dated January 20, 1854, to Thomas P. Stubbs,” to “lot of land No. 2 in Block 12 as represented in the plan of survey of the Southwest Commons of
The motion for a new trial states that to this certified copy “ no seal was ’attached other than the scroll after the name Strohecker,” and that there were attached thereto “two affidavits not entitled in this cause, or in any cause.” One of these affidavits was made by H. M. Comer, dated May 20,1897, and recited, “ that he is the president and one of the receivers of the Central Railroad & Banking Company of Georgia, and likewise president of the Central of Georgia Railway Company, and that the following described instrument [the original deed of this copy] is not in his possession, power, custody, or control, or in the possession, power, custody, or control of said Central Railroad & Banking Company of Georgia, or of the Central of Georgia Railway Company, and that he believes said original deed is lost or destroyed; that he verily believes that said original deed was at one time in existence and is now lost or destroyed; and he makes this affidavit in order that a certified copy of said deed from the record may be introduced in evidence.” The other affidavit, which was dated the 19th of November, 1900, was similar to this, and was made by John M. Egan, who in the affidavit described himself as “ The president of the Central of Georgia Railway Company, which has succeeded to the papers, offices, and property of the Central Railroad and Banking Company of Georgia.” The defendant objected to the introduction of the certified copy of the deed, upon the following grounds: “ 1. That said affidavits that they believed said deed is lost is not sufficient proof, they not having shown that it is not still in the possession of Stubbs. 2. That said deed, whilst it purports to have been made by the Mayor and Council of the City of Macon, is not signed by the Mayor and Council, the corporate name of said municipal corporation, but is simply signed 1E. L. Strohecker, Mayor.’ 3. That there is a recitation in said deed that it has caused the clerk of council to affix the common seal of said city to the deed, while no such seal being in fact attached negatives the idea that there had
Judgment reversed.