9 Ga. 440 | Ga. | 1851
By the Court.
delivering the opinion.
This was an action of ejectment, brought by John Burke against Joseph C. Beverly and William McBride, to recover a part of lot of land No. 67, in what was originally the 9th district of Fayette County. The plaintiff relied upon a statutory title.
There is no law authorizing this private writing to be recorded. The fact of registration does not entitle it, therefore, to be received in evidence for any purpose, without proof of its execution. Had this instrument been thirty years old, and testimony adduced that it had been acted upon, or that the obligee took possession of the premises in dispute under it; or had it been produced by the adverse party, pursuant to notice, the defendant also claiming an interest under it, no proof of its execution would have been required.
The plaintiff next offered in evidence a Sheriff’s deed to the land, to which defendant’s counsel objected, on two grounds—
1st. Because the executions under which the property was s'old, were not produced.
2d. Because the deed conveyed the entire tract, part of which was situated in Campbell County, and a part in Fayette; and it was insisted, that the Sheriff of Campbell had no authority to sell land in Fayette.
The Circuit Judge admitted that the deed conveyed no title to the land in Fayette, but held, that it was good to show color of title to the whole.
The very fact of setting up a statutory title, excludes the idea of a rightful or legal title. The length of the possession, and its nature and character, are the only tests.
Under certain circumstances it might be proper to allow proof as to improvements, even when made by acknowledged trespassers. If, for instance, the profits of tire premises have been increased by repairs, it is proper for the Jury to take into consideration these repairs, and to diminish the profits by them, but not below the amount which the premises would have been worth without such repairs. Beyond this, perhaps, it would not be proper to go in favor of trespassers; for it would be against all
By the Constitution of this State, titles to land must be tried where the land lies. The Court in Campbell, then, had no jurisdiction over so much of lot No. 67, as lay in Fayette. The whole proceeding, as to that, was a nullity; and the exemplification of it was inadmissible, ex suo vigore, to prove notice or any thing else. We will not say that the original papers might not have been produced, not as the pleadings in the cause, but as writings merely, and service of them proven by the officer, as an individual, for the purpose of charging Burke with notice of this adverse claim; but the record, per se, or a co¡ry of it, professes no inherent efficacy to effect this object, for want of jurisdiction in the Court.
The 47th Rule of the Superior Courts provides, “ That all objections to the execution and return of interrogatories on appeal trials, the form of the commission or service of notice must be made by the party seeking to avail himself of them before the cause has been submitted to the Jury, or they will not be heard by the Court, provided that the said interrogatories have been twenty-four hours in tire Clerk’s office; and if they have remained in the possession of the party intending to use them, they shall be communicated to the adverse party before the cause is called for trial.” 2 Kelly, 475.
What is the correct interpretation of the concluding clause
The construction then, we put upon this rule is, that it is directory merely. It gives to parties the right to call for Hie exhibition of all the testimony taken by commission, before the causéis called for trial; and, consequently, makes it the duty of the Court to compel its production. If this is not done from inadvertence or design, the party holding the interrogatories in his-possession, goes to trial at his peril — it being competent for the adverse party, when the interrogatories are offered during the progress of the trial, to take any exception to their execution- or return, to the form of the commission, service of the notice, or any other defect. It remains only to dispose of the last exception-
All the authorities concur in holding, that the- question of adverse possession is not for the Court to decide, but exclusively for the Jury. 2 Cain. Rep. 168, ’69. 1 East. 568. 1 Burr. 397 2 Cranch, 184. 12 Johns. Rep. 242, 357. 8 Ib. 495. 7 Ib. 5. 1 Cowp. 103, 217. 5 Johns. Rep. 467. 1 Johns. Cas. 289. 11 Johns. Rep. 446. 2 Bac. Abr. 529. 14 Johns. Rep. 304, 307. 9 Ib. 102, 174. 10 Ib. 334, 377, 380, 417, 475. 11 Wheat. 276, 199, 209, 59, 75. 2 Bay. Rep. 483. 2 Serg. & Rawles’s Rep. 527.
And by the second section it is enacted, “ That should any Judge of said Superior Courts violate the provisions of the first section of the Act, it shall be held by the Supreme Court for the correction of errors in this State, to be reversed, and a new trial granted in the Court below, with such directions as they may lawfully make.” Pamphlet Laws of 1849, 1850, p. 271, ’72.
Upon this ground, then, we are left without discretion. The judgment must be reversed, and a new trial awarded.
No man in this country cultivates his whole tract of land. It is very unusual to inclose the whole. Good husbandry forbids that the whole should be planted. One possession is ■ usually well defined by the boundaries of those which surround it, and frequent acts of ownership over the parts not cultivated or inclosed, give notoriety to the possession of the whole. Nothing but want of due diligence and care, under such circumstances, can deprive the rightful owner of his property. Whether the log pen used occasionally for a grocery, on one side of this unsettled tract of land, with the fragments of old casks in it, constitutes such an adverse possession to the whole, as to give effect to the Statute of Limitations, it would be premature at present to decide.