Doe ex dem. Summerlin v. Roe

20 Ga. 689 | Ga. | 1856

By the Court.

Benning, J.

delivering the opinion.

In this case, the judgment was a general one, that the motion for a new trial should be granted. That motion was put on several grounds. One of these was the decision of the Court rejecting the parol evidence offered in connection with the entry on the fi. fa. This ground, we think, was a sufficient one.

Parol evidence is, of necessity, admissible, to apply a writing to its subject.

[1.] Parol evidence, therefore, was admissible in this esse to show what parcel of land it was that fitted all the parts of the description contained in the Sheriff’s entry. And if, on the introduction of such evidence in such a case, it appears that there is no parcel which will fit every part of the description, but that there is a parcel which will fit some part of the description, this parcel is to be regarded as the parcel intended by the description. There are many decisions to this effect. (1 Phill. Ev. 533; and note 942 of Cow. & Hill.)

It was the right of the plaintiff in error, therefore, to show .by parol evidence that the fractional lot on which John Smith •lived at the time of the entry, was the lot in suit; and that .although thp number of it was not 181, but was 189, yet, that there was no such lot as lot 181 that was a fractional lot, or that if there was such a lot that was a fractional lot, it was not a lot occupied by John Smith. And if he had shown this, he would have been entitled to insist that the lot described in the entry was the lot in suit.

In such cases, the inaccurate part of the description is to •be rejected.

The Sheriff’s deed contained a recital to the effect, that he had seized and sold the land under the rejected fi. fa. The -defendant insisted that this recital was evidence of the facts •recited, although the Ji. fa. itself was not in evidence. The •Judge thought that it was, and made it.the ground on which •He granted the new trial.

In this we differ with him. As the fi. fa. was not in evidence, there was nothing in evidence to show that the Sheriff had authority to make deed or recitals. And unless he had authority to make the recitals, they could not be of any virtue.

[8.] But still, we affirm the judgment, because the other ground to which we have already adverted made the judg.naent right. That was sufficient, if this was not. And a .judgment that is right must remain right, whatever be the .reason which the Court may choose to give for it.