16 Ga. 593 | Ga. | 1855
By the Court.
delivering the opinion.
It is not advisable, we apprehend, to enter minutely into the consideration of all the points, in detail, which are spread out upon this record. It would involve unnecessary repetition. Having expressed the opinion of the Court, upon the main questions which must control the present and future disposition to be made of this case, we shall have discharged our duty.
Admitting this to be so, was it not competent to establish, by Counsel, that such was the fact ? And would this be any disturbance of the rule which will not allow a party to discredit his own witness? Whatever diversity of opinion may have existed upon this question, we consider it as settled, both upon reason and authority, in the affirmative. A party is not to be sacrificed by his witness; and he ought not to be entrapped by the arts of a designing man, perhaps in the interest of his adversary. He ought, therefore, to be permitted to relieve’ himself from the effect of testimony which has taken him by surprise, not by showing that the witness, from his general character for truth, is not entitled to credit, but by showing that the fact is different. (Wright vs. Beckett, 1 M. & Rob. 414, 416, per Lord Denman ; 1 Phil. & Am. on Ev. 904, 907 ; Rice vs. New Eng. Marine Ins. Co. 4 Pick. 439; Rex vs. Oldroyd, Rus. Ry. 88, 90, per Lord Ellenborough, and Mansfield, C. J.; Brown vs. Bellows, 4 Pick. 179; The State vs. Norris, 1 Hayw. 437, 438.)
In 1816, a tract of land containing 7,000 acres, was granted, by the State, to William Wilder. In 1823, Wilder conveyed to Ebenezer Jenlcs; and in 1833, Jenks sold to Edwards, the plaintiff in ejectment. In 1838, Mr. Edwards being involved in litigation with Jenks or his real or pretended assignee, as to the payment of the purchase-money, which he had agreed to give for the land, probably considered it his interest, at that time, to make it appear that his vendor’s title was- defective. He 'took initiatory steps to run up the land in dispute as vacant, but waived his claim in favor of Wm. A. Smith — the latter refunding to him the money which he had expended in pro
Did these facts constitute adverse possession in Smith and those deriving title, by Sheriff’s sale, through him, as against Wm. H. Edward’s ? They might not, perhaps, as to other persons; and would not, ordinarily, amount to such notorious, open and visible occupancy as would be sufficient to give notice to the true owner. And this is the meaning and object of the rule of law, as to the nature of that possession which will oust the true owner of his title. But this is a special case; for here the possession was not impliedly, but in fact, known to Edwards and with his consent, and with notice, that these acts of ownership were exercised by virtue of the independent title which Smith held to the land. We hold that it was good, under the circumstances, as to him.
And for Mr. Edwards to relieve himself, it is incumbent on him to make it satisfactorily appear that this conduct of his was not the result of prudential considerations, to avoid the payment of his debt to Jenks, much less of fraudulent motives, either as it respects Jenks or Smith, but the effect of ignorance, not of his title — that will not excuse him — hut of the fact that this parcel of land was embraced in his deed from Jenks. This done, and he having relieved himself from the imputation of that gross negligence, in ascertaining the fact which, in contemplation of law,’ is' equivalent to fraud, and having offered to make adequate redress to Smith, or those claiming under him, for the expense which they have incurred, by reason of his laches or misconduct, and he may, perhaps, be relieved from the dilemma in which he has involved himself.
In this and divers other views then, land may be twice granted. And it is claimed by the defendant that the acts of Mr. Edwards, done and omitted in relation to this land, are
We would add, that in the judgment of this Court, the Court below was right in maintaining that the deed from Jenks to Edwards, was not obnoxious to the Act of. Henry Vlllth against purchasing pretended titles. It was made five years before the land was granted to Smith, or possession taken under that grant.
Finally, we affirm the ruling of our brother in rejecting the Sheriff’s deed as title, without the production of the fi. fa. The officer's authority to sell must be produced or accounted for, in which event secondary evidence would be allowed.
Judgment reversed.