168 Ga. 248 | Ga. | 1929
A. C. Blackwell brought suit against Houston County, to recover possession of 16.32 acres of land alleged to belong to the plaintiff. The petition was amended by alleging that 2.3 acres of the 16.32 acres had never been in possession of the county, but was in the possession of the plaintiff as a pasture and had been so used by him since January, 1917. A plat of this 2.3 acres, made by the surveyor of Houston County, was attached to the amendment. The amendment in effect made the proceeding a complaint for 14 acres of land adjoining the plaintiff’s home place on the west. The county answered, admitting possession of the land, denying that it belonged to the' plaintiff, and denying that the abstract of title attached to the petition covered the land in dispute. The answer did not set up any title or right of possession in,the county. The trial resulted in a verdict in favor of the defendant. A motion for new trial was overruled, and the plaintiff excepted. The motion for a new trial contains, in addition to the general grounds, the following:
(1) “The court erred in refusing to allow A. C. Blackwell to, testify in his own behalf that he had a conversation with C. C. and R. H. Lavelle in reference to the dividing line between movant and
(2) The court erred in refusing to allow the plaintiff to testify that he went before the commissioners of Houston County in regular session with all the commissioners present, and that Powers Cooper, one of the commissioners, said that they took possession of the land in controversy through a mistake, and that the county would have perhaps surrendered the land to him if he had not erected a wire fence enclosing the land, being the wire fence built by movant to represent the dividing line between the Ellen place owned by him and the Cobb land; the defendant objecting upon the ground, that county commissioners speak only by record and minutes, and that J. P. Cooper, a member of the board, was not the mouthpiece of the board as a court to express the attitude or claim of the county.
(3) The court erred in permitting E. J. Thompson to testify that “there was no peach orchard there then, but there was an oak tree that has been torn up that Ellen marked on. I did not see the Ellen survey made, but he left his stob and marked trees.
(4) The court erred in admitting a copy of a plat purporting to have been made by H. D. Cutter on April 24, 1917, which appears in the brief of evidence marked exhibit “D.” This plat was objected to upon the ground that Cutter testified: “As far as I can recollect and as far as I can tell, this seems to be identical with the original plat .1 made. T do not remember now where I began or where I quit, for it has been eight or ten years ago, and I expect I have made a thousand of them since that time.” It also appeared from the evidence of S. A. Nunn that he received a plat from the Federal Lank Bank of Columbia. This plat was admitted over the objection that it was not proved to be a correct representation of what it purported to show, or proved to be a correct copy of the original.
(5) The court erred in admitting, over objection, a plat purporting to be a copy recorded in deed book 4, page 84, in the clerk’s office of Houston superior court, as testified to by E. J. Thompson, and purporting to represent a strip of twenty acres across the west end of lot 315, marked E. J. Thompson. This plat was objected to upon the grounds (1) that it was not proved to be correct, and (2) that the copy offered in evidence was not proved to be a correct copy, and did not purport to have been made by a surveyor of Houston County or. elsewhere.
(6) Because the court charged the jury: “There are certain rules laid down by the law that should be followed by the jury in all cases of disputed lines. Natural landmarks, being less liable to change and not capable of counterfeit, shall be the most conclusive evidence. Ancient or general landmarks such as corner stations and marked trees shall control the .courses and distances
(7) Because of newly discovered evidence, to wit: A plat showing a survey by G-. W. Killen, county surveyor, showing the original lot line on the east side of lot 315, running north and south between lots 315 and 274; and having discovered said plat since the trial, and being thereby able to establish the line of the east side of lot 315, it appears that the line claimed to be the east line of the Cobb tract by the defendant is not correct, but that the correct line on the east side of the Cobb tract is 154.9 feet further removed to the west than the point claimed by the defendant to be the east line of the Cobb tract. Said plat is attached to an affidavit by movant and his counsel that neither of them knew of the existence of said plat at the time the case was tried; and the affidavit of Rhodes Sewell, surveyor of Houston County, that he made measurements from the line so appearing on said plat made by Killen, westward across lot 315, 2970 feet to a point representing a line on the west side of lot 315 and the east side of lot 316; also a plat showing a survey made by Rhodes Sewell, attached to his affidavit. And the newly discovered testimony shown by the affidavit of N. L. Cooper, that he has owned land adjoining lot 315 now owned by A. C. Blackwell, known as the Killen place, for twenty-one years, and that there was a sycamore tree standing at or near the southeast corner of lot 315 when he bought adjoining lands of "W. F. Killen, and that W. F. Killen told affiant said tree was at or near the corner of three acres of lot 274 bought by affiant from
The court did not err in excluding from evidence the testimony stated in the first special ground. It is true that the defendant did not in its answer claim title to the land, and would not be able to prevail in the suit unless it showed such an outstanding title as would enable a third party to maintain an action for the possession of the land in controversy against both the plaintiff and the defendant, under the principles announced in Ashley v. Cook, 109 Ga. 653 (35 S. E. 89), citing Fletcher v. Perry, 97 Ga. 369 (23 S. E. 824). However, in this case it must be borne in mind that the plaintiff introduced a sheriff’s deed for taxes, which ostensibly put the title to the tract of land in dispute in the County'of Houston. This muniment of title was introduced by the plaintiff for the purpose of attacking it, but the purpose for which it was introduced did not prevent it from showing a title in Houston-County. By introducing this deed the plaintiff none the less showed that Houston County had color of title, unless and until by attacking it the plaintiff showed that this deed was not a good muniment of title. It is insisted that the levy- of the tax fi. fa. was void, because the levy was excessive. In view of the evidence offered in behalf of the defendant, which showed that Houston County had been renting the premises to various persons for more than seven years, the tax deed executed by the sheriff was good as color of title and ripened a title by prescription. According to some of the testimony for the defendant, the county through its predecessors had held possession for a far greater length of time than seven years. . The deed introduced to be attacked was evidence of the fact that the Lavelles were liable for the taxes at the time indicated by the fi. fa., and that it was sold as their property. While they could assert the invalidity of the execution upon the ground that the levy was excessive, a stranger can not avoid a deed which is antagonistic to his interests by reason of
There was no error in rejecting testimony of the plaintiff to the effect that he went before the county commissioners and that one of the commissioners in the presence of the others said that the commissioners took possession of the land through a mistake, and that the county would perhaps have surrendered the land if plaintiff had not erected the wire fence enclosing the land. In such matters the county commissioners speak only by records and minutes. A verbal expression of opinion or statement of facts, whether made by one of the members of a board of county commissioners or by all of them, is of no binding effect, nor are admissions or statements as to the county’s ownership of property or as to the extent of such property binding upon the county. Evidence of any alleged admission by a county, and especially of one detrimental to the interests of the county, must appear upon the minutes. Civil Code (1910), § 4844.
In the third special ground of the motion for new trial it is insisted that the court erred in permitting a witness to testify as set forth in the statement of facts. The evidence was objected to on the ground that the witness did not see Killen make the survey, and for that reason his testimony was hearsay. This objection is without merit, for the witness testified that before Blackwell moved upon the place where he now lives and before there was any peach orchard, there was an oak tree, since torn up, that Killen marked on. The witness testified that, while he did not see the survey made, Killen was making the survey for him, and that he showed the witness where he made the survey and marked the trees. The evidence was properly admitted. Where one employs a surveyor as the witness Thompson had done in this instance, unless he is expert in surveying, his only knowledge is derived from having pointed out to him, as Killen did to Thompson, the surveyor’s
Considering the evidence in the case, the ruling in the third headnote requires no elaboration.
There are several reasons why the overruling of the seventh ground of the motion does not require a reversal of the judgment refusing a new trial. This ground is based upon testimony of G. 0. Harris, Rhodes Sewell, and M. L. Cooper, to be introduced should a new trial be granted. G. 0. Harris was sworn and testified upon the trial. He was called by the plaintiff, examined by him, and cross-examined by the defendant. There is no affidavit, as required by law, stating that by the exercise of ordinary diligence the testimony now alleged to be newly discovered could not have been ascertained. In Hall v. State, 117 Ga. 263 (43 S. E. 718), it was held that “Where witnesses summoned by the defendant are present at the trial, but are not examined, a new trial will not be granted on the ground that since the verdict the defendant has for the first time learned that they could have testified to facts -material to his defense.” To the same effect is the ruling in the comparatively recent case of Rounsaville v. State, 163 Ga. 391 (136 S. E. 276). The cases cited were criminal cases, but section 6085 of the Civil Code, dealing with the grant of new trials upon newly discovered evidence, is identical in its language with section 1088 of the Penal Code upon the same subject; and if there is any difference, a more liberal construction should be given to the law where one’s person and liberty are affected than where mere property rights are involved. The affidavits of C. II. Hardison and J. T. Griggs, supporting the witness G. 0. Harris, contain the statement “that said G. 0. Harris bears a good reputation in the
There is no supporting affidavit as to M. L. Cooper or as to Rhodes Sewell. In the affidavit of the plaintiff it does not appear that the information given to him by M. L. Cooper could not have been discovered by the exercise of ordinary diligence. The code section requires that counsel as well as movant must aver that the alleged newly discovered evidence “could not have been discovered by the exercise,of ordinary diligence,” and no such statement is contained in thé affidavit of sole counsel for plaintiff. Eor these reasons the court did not' err in overruling the seventh ground of the motion for a new trial. We are the better satisfied with this ruling, because an examination of the alleged newly discovered evidence discloses that it is merely cumulative to that adduced by the plaintiff upon the trial; and'a new trial is never granted when the alleged newly discovered evidence upon which the application is based is merely cumulative or impeaching. Civil Code, (1910), § 6085. As said in Patterson v. Collier, 77 Ga. 292, 296 (3 S. E. 119), “An extraordinary motion for a new trial, based alone upon newly discovered evidence, ought not to prevail unless there has been full diligence to procure the evidence before the trial; nor unless the new evidence would probably produce a different verdict if a new trial were had. There is nothing new in this proposition, and it is not worth while to pause to elaborate it.”
The controlling question in this case was the ascertainment of the true boundary line of the plaintiff’s property on the west side of the tract of land of which he is in possession. By his peti
Judgment affirmed.