162 Ga. 743 | Ga. | 1926
The defendant Mrs. Crider offered an amendment to her plea, in which it was alleged that the plaintiff’s right to recover the land had previously been adjudicated against her in the following manner, that is to say, that the plaintiff claimed the land as an heir at law of Mrs. Mary D. Howell, deceased; that the plaintiff is also an heir at law of Clark Howell, deceased; that at the December term, 1889, of the court of ordinary the administrators with the will annexed of Clark Howell petitioned for leave to sell the land in controversy, for the purpose of distribution among the heirs, praying that citation issue and be published as required by law, and that leave to sell be granted them; that citation did issue and was published as required by law, by means whereof the plaintiff became “a party to said action;’’ that at the January term, 1890, the judge of the court of ordinary passed an order granting the administrators leave to sell as prayed. It was further alleged that one of the chains of title under which the defendant claimed is deraigned through said sale, and upon all of the foregoing “the plaintiff is barred from recovering said land.” The petition to the ordinary hied by the administrators and the order granting them leave to sell were attached to the amendment as exhibits thereto. The court disallowed the amendment, and one of the assignments of error is upon this ruling. The complaint in the bill of exceptions was that the amendment alleged that the title to the property had been adjudicated against the plaintiff in virtue of the foregoing proceeding, and therefore that the ruling of the judge was contrary to law. One sufficient reason to support the ruling of the trial court is that “Neither the ordinary nor the court of ordinary has, under the law of this State, jurisdiction to try cases involving the title to” real property. Durham v. Durham, 107 Ga. 285, 287 (33 S. E. 76); Dix v. Dix, 132 Ga. 630, 638 (64 S. E. 790); Jones v. Cooner, 137 Ga. 681, 682 (74 S. E. 51).
The defendants offered in evidence a deed executed in Eul
The principle illustrated by the foregoing excerpts has been recently applied in the cases of Hayes v. Dickson, 148 Ga. 700 (98 S. E. 345), and Calhoun v. Ryals, 159 Ga. 35 (124 S. E. 867). The question in the Hayes case arose in the following manner: “The administrator upon the estate of William Wash filed an application in the court of ordinary for leave to sell ‘the lands in said county belonging to said estate, which are described as follows: 245 acres, more or less, of lot of land No. 109, also 122 acres, more or less, of lot of land No. 94, in the 4th land district
The case differs from Huntress v. Portwood, 116 Ga. 351 (3), 356 (42 S. E. 513), holding: “Where the owner of an irregularly shaped tract of land embracing approximately 307-1/2 acres undertakes to convey a portion thereof by. executing an instrument
The land which was sought to be recovered was definitely described in the petition as a tract of land in the southwest corner of the original land lot 216 in the 17th district of Fulton County. There was extrinsic evidence to the effect that the land referred to in the deed which is dealt with in the preceding division was in the southwest corner of the said original land lot. It follows that the deed was not inadmissible in evidence on the ground that the land referred to therein “did not touch the premises in dispute” or that it “was otherwise irrelevant.”
The defendants offered as evidence and as color of title a duly recorded deed executed in Fulton County, Georgia, March 7, 1898, by Eliza A. Butler (formerly Eliza A. English) to Felix A. Vaughan, which stated the consideration as $400, and purported to convey “all that tract or parcel of land, lying and being in land lot 216 of the 17th district of Fulton County, Georgia, and being
The defendants offered as evidence of title and as color of title a certified copy of a deed executed, December 8, 1888, by “Albert Howell and A. P. Woodward, administrators of the estate of Clark Howell, deceased,” purporting to convey, for a consideration of $400, “all that tract or parcel of land lying and being in the State of Georgia, Fulton County, being part of land lot Number 216 in the south portion of said lot of land — commencing at a point on the south side of land lot number 216 and running north to said land line of T. L. English, thence west to original land-lot line, thence south to corner of original land lot, thence east to commencing point; said tract of land is bounded on the east by William Brown, on the north by T. L. English, on the west by Franklin, on the south by Dunnigan; said tract of land contains 40 acres more or less.” The deed was recorded December 11, 1888, in Book K3, page 271, of the general records of Fulton County. There was no evidence of an order of the court of ordinary authorizing a sale of the property. This paper was rejected from evidence on the ground that it was void for lack of’description and was otherwise irrelevant. The description in this deed sufficiently specified all of the boundaries of the lot, and was sufficiently definite to constitute valid color of title. It was therefore admissible in evidence as against the ground of objection that it was void for uncertainty.
The defendants offered in evidence, for the purpose of applying the description of the land as contained in the several documents referred to in the preceding divisions, testimony of a witness, W. E. Brown: “I can go out and identify a piece of land from this description: ‘40 acres more or less in the southwest cor
The plaintiff offered testimony of the witness W. E. Brown: “Mrs. Mary D. Howell had two tenants who I knew; they were Dike Brown and McDonald. McDonald stayed there two years, and Dike Brown one year. I don’t remember if the years they stayed there were continuous. There was no gap between Me-' Donald and Brown. The tenants were in possession, and I was right there adjoining. I seen them working there. Mrs. Howell would come out and look at the place, to see how they were getting along. They claimed to be tenants of Mrs. Howell. McDonald and Dike Brown are dead. McDonald is alive.” The defendants objected to the testimony on the ground that the “fact of the tenancy was basad on hearsay testimony, and was not within any of the recognized exceptions to the rule against hearsay.” The court overruled the objections and admitted the testimony in evidence. The evidence was admissible as declarations of persons in possession against their interest, and was not objectionable as hearsay. McLeod v. Swain, 87 Ga. 156 (13 S. E. 315, 27 Am. St. R. 229); Hall v. Collier, 146 Ga. 815 (3) (92 S. E. 536); Civil Code, § 5767.
The defendants offered the following testimony of the witness Charles A. Vaughan: “In 1898 Felix Vaughan moved into the house on the Pace’s Ferry Road. That is in the part of this land now held by Kellum and Davis. It was on a part of the 48-aere tract sold by Mrs. Butler to Felix Vaughan. He stayed there till his death in 1910.” To this evidence the plaintiff objected on the ground “that possession of any other part of the 48-acre tract would not show possession of the tract in dispute,
The defendants offered to introduce testimony of A. T. Butler, as follows: “My wife sold the land to Felix Vaughan in 1897 or 1898.” This testimony was excluded on the objection that “the sale would be a matter of record.” The testimony was inadmissible, because parol evidence is not admissible to prove a link in a chain of title in ejectment when there was an existing deed evidencing the title.
The defendants offered testimony of Miss Carrie Vaughan, as follows: “I know Charlie Brown did handle the property for us. I personally don't recollect talking to him much about it. I remember at one time we drove out there to Mr. Brown's house. My brother wanted to see him, and I waited for him. I was there with them. I never had much to say about it; my brother handled most of my business transactions. I saw the wood that was cut by Mr. Brown. I did not see Mr. Brown cut it. I do not recollect any personal conversation with Mr. Brown, no more than that my brother and T were out together there, and they were talking' about it. They discussed it right by the car. I was not interested any more than hearing it. He talked to Mr. Brown about tending the property. I recollect the conversation, and he did tend it. I did not actually see him tending it. I had personal knowledge, knowing it was happening at the time, but not paying particular attention. Our uncle advised us to let Mr. Brown look after the place, to tend the land for us, look after it and care for it; and he did. He cut trees on it, and we asked him not to let any one else cut trees on it. That continued on up to Mr. Brown's death. I had no personal knowledge, but what my brother told me.” The plaintiff objected to the testimony “so far as it relates to what Brown did and having charge of the place and cutting of the timber.” The court sustained the objection, stating: “I rule'it out; it is hearsay.” The witness was testifying as to a conversation between her brother and Brown, the alleged tenant, that occurred in her presence. The testimony was admissible, and the judge should not have excluded it as hearsay
The defendant offered in evidence tax receipts for the years 1914, 1915, and 1921 showing payment of taxes by Van B. Vaughan and Carrie Vaughan, in connection with the testimony of a named witness that “I have examined the real-estate books of Fulton County, Georgia, for the years 1914, 1915, and 1921, and find that the property in dispute was returned by Van B. and Carrie Vaughan for those years.” The tax receipts were offered as evidence tending to show the bona fides and notoriety of the defendants’ possession. The tax receipts were admissible for the purposes stated.
The ruling announced in the twelfth headnote does not require elaboration. Judgment reversed.