Anderson v. Suggs

42 Ga. 265 | Ga. | 1871

Lochrane, C. J.

This case presents a controversy about the dividing line of a lot of land which Suggs had sold to Anderson. Upon the trial below, it appeared that Suggs was the owner of lot of land number sixty-eight, in the Eighth District of Quitman county, and that he had sold to Anderson a part of that lot. It further appears, that the lot was divided by a stream called Big Branch. The part of the lot sold to Anderson, Suggs claimed to bé south of this branch. In 1862, however, Anderson went over the branch, on the north side, clearing some twenty acres, for which twenty acres, this suit in ejectment was instituted. On the trial, Suggs introduced Abraham Shields as a witness, who testified as to the sayings of Anderson, relative to his acquiescence in the Big Branch as the dividing line. Shields also stated that he had seen the deed Suggs made to Anderson, and also some action by the County Surveyor in running the lines. Several deeds were introduced from various parties for the whole lot to Suggs in which it appeared, that the part south of the branch had been deeded as that part of lot sixty-eight, lying south side of the branch; and in the other'deed, for the north part, known and distinguished as the “north part of the lot sixty-eight, or all that part lying north of Big Branch.” These titles by their terms recognize the branch as the dividing line. The plaintiff closed, showing title in himself to the whole lot, but not a chain of title from the State. Defendant introduced no evidence. The jury found for the plaintiff with mesne profits.

1. The first assignment of error, is upon the admission of the testimony of Abraham Shields. It appears from the bill of exceptions, the counsel for defendant moved to rule out the testimony of Abraham Shields, upon the ground that he could not give in evidence the contents of the deed. The Court overruled this motion. In this, we think the Court was in error. It was competent for Abraham Shields to have proved the sayings of Anderson while in possession as to his assent to, or acquiescence in Big Branch as the dividing line; but it was not competent for him to go into the contents of a deed. And, as soon as it was disclosed by his evidence to the Court that there was a deed from Suggs to Anderson, it was the duty of the Court to have stopped the testimony, and compelled the parties, one or the other, claiming under such deed, to have introduced it.

A question of practice in this particular, has been argued before us, and we lay down the rule, that he who claims any right or benefit, arising under any instrument- in writing, is the party whose duty it is to present it to the Court, and put it in evidence; and this rule is not changed by the fact that the instrument is in the possession of the adverse party. As to the oral evidence in relation to the order of the Court and the action of the Surveyor, we hold that as to such testimony, whether it was objected to at the time of its admission or not, it was the duty of the Court to have ruled it out when that motion was made before it. And inasmuch as Suggs was not entitled to recover upon the title presented, the whole lot in dispute and the testimony of Shields was improperly admitted, we hold the Court erred in refusing to grant a motion for a new trial.

Judgment reversed.