98 Ga. 594 | Ga. | 1896
A controversy as to the ownership of the land involved, in the present action arose in 1884, when H. W. Cannon and F. A. Bleckley brought ejectment for its recovery
On August 1, 1895, W. D. Young and Sarah E. White, alleging themselves to be the owners of the land, brought their present petition for the purpose of enjoining Caixnon, as administrator, James Bleckley, and W. S. Paris, attorney for the plaintiffs in the ejectment suit, from interfering with, cutting timber on, or otherwise exercising any acts of ownex’ship over the land. The trial judge granted the injunction prayed for, which is the error complained of in the present bill of exceptions.
1. One ground of the plaintiffs’ petition was, that the .dismissal of the ejectment suit was unauthorized and operated prejudicially to their x'ights in the premises. How this could be true as to one of plaintiffs, Sarah E. White, it is difficult to conceive, as she was not a party to that case. Bxxt even if the parties to both actions were identical, the dismissal of the action in ejectment affords no legal or equitable ground for. complaint. Erom the pleadings in that case, which were introduced in evidence at the hearing of the present action, it appears that the only defense offered was a plea of “not guilty.” Neither by counter-petition, answex’, plea or othexwise, did the defendants seek any affirmative relief against the original plaintiffs to that action, or the sole remaining plaintiff at the time it was
2. In support of their claim of ownership, the plaintiffs in the present action undertook to trace title from Charles F. Betton, alleged to be the original grantee from the State, into Abbott EL Brisbane, under whom they claim. The defendants interposed numerous objections to the evidence offered for this purpose. It is unnecessary, however, to deal with the various questions thus raised; for conceding that the plaintiffs successfully traced title into Brisbane, they entirely failed to substantiate their claim that such title as he had subsequently became vested in them jointly, or severally in either. W. D. Young, one of the plaintiffs, attempted by affidavit to testify that title to the land in dispute “passed from Abbott El. Brisbane to John Raven Matthews and Edward B. White, and then to Sarah E. White,” without giving ¿ny particulars as to how or when. This affidavit was objected to as inadmissible to show title in the plaintiffs, and error is assigned upon its admission in evidence, the objection being that “titles to land cannot be shown except by writing.” This certainly was a novel method of attempting to prove the fact sought to be shown. We apprehend that even if Young were an attorney at law, and had been offered as an expert witness, the question whether or not title did in fact pass as testified to, would be a matter for determination by the court, and not one for the expression of an opinion by the witness. The statute of frauds declares that “any contract for' sale of lands, or any interest in or concerning them,” must be in writing. Code, §1950, par. 4. If title to land
3. Again, an effort was made to show title in Young, the other plaintiff, by an extract from the will .of John Raven Matthews authorizing his executors to sell and convey the land, and a deed to Young from William R. Matthews, as executor, in pursuance of this power. As the above mentioned affidavit of Young was incompetent to show that title ever passed out of Brisbane and into John Raven Matthews, and no other evidence on this point was offered, the latter necessarily stands in the attitude of a mere stranger to the title; and moreover,-as Matthews was not shown to have ever been in possession of the land, no title, or presumption of title, in him was shown, derivable from any other source. It is unquestionably true that possession under a claim of right raises a presumption of law that the occupant has a rightful and legal possession; and proof of this fact makes out a prima facie case of title in him, calling on the defendant to assume the burden of proof. Wolfe v. Baxter et al., 86 Ga. 705; McLendon v. Horton,
4. Brom the above it will be seen that the plaintiffs signally failed to show in either of them any ownership or right of possession as to the lands in controversy, legal or equitable; and, without regard to the various rulings of the court complained of, the decision in their favor was unsupported by the evidence and erroneous.
Judgment reversed.