Baird v. Evans

58 Ga. 350 | Ga. | 1877

Warner, Chief Justice.

The plaintiff brought his action against the defendants to recover the possession of a lot of land described in his declaration. On the trial of the ease, the jury found a verdict in favor of the plaintiff. The defendants made a motion for a new trial on the several grounds therein set forth, which was overruled by the court, and the defendants excepted.

. 1. There was no error in admitting in evidence the deed from Alexander Holmes to F. O. Welch. That deed purported to have been executed in the state of Florida on the 1th of May, 1855, and had been recorded. The objection to its admission in evidence was for the want of a proper probate. The deed appears to have been signed, sealed and delivered in presence of Moses Curry and Francis J. Wheaton, the subscribing witnesses thereto. Although Wheaton, when he subscribed his name to the deed as a witness, did not add thereto that he was a commissioner of deeds for the state of Georgia, yet his certificate is attached to the deed, in which his official character is fully set forth, and the courts of this state are bound to recognize the official acts of its own commissioners, appointed under the laws thereof to take the probate and acknowlegment of deeds in other states. The deed in this case was attested by two witnesses, one of whom was a commissioner of deeds for the state of Georgia, as appears by his certificate on the deed itself, and, therefore, comes within the ruling of this court in Watts et al. vs. Smith et al., 19 Ga. Rep., 8.

2. There was no error in striking the defendants’equitable plea, in view of the allegations contained therein. The plea did not allege that the deed executed by Henrietta Y. Hart to Eugene Hart was made with the intention to delay or defraud the creditors of the plaintiff, or that he had any knowledge of it, nor did the plea allege that such intention was known to Eugene Hart, the party taking the conveyance — Code, §1952.

3. There was no error in ruling out the execution offered in evidence in favor of Isabella Smith against Henrietta Y. Hart as color of title, •or for the purpose of showing title out of her. It is trae that there is an entry on the execution that the land was levied on by the sheriff on the 2d of August, 1858, as the property of the defendant, H. Y. Hart, and was sold on the 3d of November, 1858, but who was the purchaser does not appeal’, nor that any deed under that sale was ever made to any person for the land.

4. There was no error in ruling out the parol evidence of "Walker as to who purchased the land at the sheriff’s sale, so as to make the execution admissible in evidence as color of title on which to base a prescriptive title by possession. To constitute a good prescriptive title to land, the possession thereof must be under written evidence of title, not part in writing, and part in parol. The equitable plea having been properly stricken, the evidence of Gill, offered in support of it, was also properly rejected.'

Let the judgment of the court below be affirmed.