5 Ga. 39 | Ga. | 1848
By the Court.
delivering the opinion.
An action of ejectment was brought by John Doe, ex dem. of John Johnson and others, against James and John Lancaster, to
It may be well enough to remark, by way of explanation, that there were two John Johnsons, and the question here, was one of identity, as to who drew the land, and that the John Johnson under whom the plaintiffs claimed, was not the same, under whom the defendants set up title.
Defendants introduced the interrogatories of John Johnson, the deedor of Rush, and divers other testimony, to show that the John Johnson under whom the defendants claimed was not the drawer of the lot of land, and that Rush knew the fact when he purchased. He also offered in evidence, the record of a former recovery, at the instance of the heirs and legal representatives of John Johnson, the co-defendants in this suit, against the plaintiffs or part of them, of the premises in dispute. But this evidence being ruled out, the defendants closed their case. The plaintiff produced no rebutting proof to sustain his title, and the case was then submitted to the jury, under the instructions of the Court. >
It becomes important to the proper understanding of this case, to notice the exact footing upon which the counsel for the plaintiffs, and the Court, put the plaintiffs’ rights to recover-. Mr. Hill, whose conduct in the management of the cause, confers the highest encomium upon his legal learning and acumen, conten
Thus it will be perceived, that counsel for plaintiff distinctly disclaimed any right to recover under a possession, short of seven years or more; and under circumstances which gave them a good and complete statutory title.
The Court charged the jury, that although they should believe that the John Johnson testified to, by the plaintiff’s witnesses) was the drawer of the land; yet, if they should farther find, from the evidence, that he had moved away, and had not been heard of for seven years or more, then the plaintiff could not recover on the demise in his name, as they must presume he was dead. The Court farther charged the jury, that if they believed from the evidence. that the lessors, Rushs and those under whom they claimed, “ had been in the actual, uninterrupted and continuous possession of the premises in dispute, under a bona fide claim of right, and held the same adversely, under color of title, seven years, complete, and had not voluntarily abandoned the possession afterwards — then the plaintiff ought to recover, if they should believe, farthermore, from the evidence, that the defendants were base trespassers, or had forcibly ousted the lessors Rushs from the possession. The Court, on being asked by defendants’ counsel, charged farther — that if the defendants, or any of them had a regular and perfect claim of title from the State and had the peaceable possession- of the premises in dis pute, then the plaintiff could not recover on a previous adverse
“ The Court made no charge to said jury as to any precious possession, by said plaintiffs, or any of them, or of those under whom, they claimed, except as to such as the jury should believe, from the evidence, to have been bona fide, and under color of title and uninterrupted and continuous, and for a period of seven years, at least.”
The jury, under the charge, rendered a verdict for the plaintiffs, in other words, they found that the plaintiffs had made out a good statutory title.
An application was made for a new trial, on the grounds—
1st. That the verdict was contrary to law.
2d. That it was contrary to evidence.
3d. That the Court erred in rejecting the record' of the former recovery.
The motion was grautedupon the last ground alone ; and thereupon, plaintiffs, by their counsel, excepted.
Ought the new trial to have been awarded?
Had the defendants then, at this stage of the proceeding, excepted to the decision of the Court rejecting this record on the trial, and submitted to a verdict, the case might have been different. At any rate, we are clear that the presiding Judge erred in rejecting it at the time when it was offered. But the plaintiffs’ counsel, with a clear perception of his case, supplied all the proof which the introduction of this record would have imposed upon him. The defendants have lost nothing by its rejection. It would only have shifted the burden from their own to the shoulders of their adversary. The task has been voluntarily assumed. The plaintiffs’ counsel in his argument, and the Court in its charge, utterly repudiate a possession which is stripped and divested of all right. Could possession, commenced under the high presumption of title, which the judgment of Law affords, have done more for the party. The record could not have helped them. The plaintiffs exhibited paramount title, a title which overrides the possession of the defendants, sanctioned or legitimatized as it may be, by their lawful entry under a judgment of former recovery. Why allow a new trial then, because this evidence was refused 1 The result must inevitably be the same.
Section 3d applies the provisions of Section 1st to under-claimants, and directs that the Act and the several clauses thereof, may be given in evidence to the Jury, upon a trial of any claim, matter or right, to any lands or tenements in question between party and party, and that Chief Justice and, Judges, upon all such trials, shall allow the same to be givenin evidence, so far as concerns the said matter in difference.
And to prevent dispute, how claims are to be made to lands, and that the possessors of lands may know how and in what manner other persons having claim to any lands or tenements in their possession, must claim the same, &c. Section 4th enacts that all persons laying claim to lands, must proceed by action at Law, &c. Prince, 573, 4, 5.
Can any one read this Statute and doubt the policy which dictated it ? The head and front of its passage, evidently, was to quiet men’s possession in this wilderness territory, a paramount consideration in all new countries especially. Nothing is so well calculated to prevent population, as doubts and difficulties about land titíes. The Act of 1767, intended to place all real and mixed actions upon the same footing, and to require every writ, whatever, for the recovery of land, to be instituted within seven years. With us, ejectment has always been the usual, if not the only remedy. It is so now in England, since the Statute 3 and 4, Will. IV. ch. 27, abolishing all other forms of real action. If the person holding the paper titles, sleeps over his right, for seven years after the cause of action accrues, the right of entry and of property, too, are lost. The occupant has acquired an indefeasible title ; one that is not only sufficient for protection, but also for recovery against all the world. When called upon for the muniments of his title, he points to the Statute, and gives it in ev
It is said, however, that if the judgment of the Court was correct on this ground, still, a new trial ought to have been granted, because the verdict of the Jury was contrary to evidence; and counsel have entered into an elaborate examination of the testimony adduced in the trial, to convince the mind of the Court of that fact.
It results, therefore, that there is error in the judgment granting a new trial, and that, consequently, it must be reversed.