Doe ex dem. Williams v. Roe

27 Ga. 187 | Ga. | 1859

By the Court.

McDonald, J.

delivering the opinion.

The record in this case contains two assignments of error, one is on the judgment of the Court sustaining a demurrer to evidence, and the other on the refusal of the Court to give in charge to the jury a request submitted in writing by the counsel for plaintiffl The plaintiff offered in evidence proceedings had many years ago in Twiggs Superior Court, for the establishment of the copy of a lost deed to the premises in dispute, including the rule absolute or judgment of the Court establishing the copy, and also the copy deed as established. This evidence was demurred to, and the Court overruled the demurrer as to the proceedings in the Superior Court and judgment, hut sustained it as to the copy deed, because of the deficiency of proof of its execution, neither of the attesting witnesses being a Justice of the Peace or other officer authorized to attest deeds, and there being no affidavit of either of the subscribing witnesses proving its execution.

[1.] In this Court other grounds of objection are urged against the admissibility, in evidence, of the copy deed, than were presented in the Circuit Court. It is here insisted, first, that the proceedings for establishing the copy deed in Twiggs Superior Court, are void, (here being no persons named in said proceedings as defendants, and that it does not appear that any person was served, or that any of the defendants resided in the county of Twiggs at the time. It appears that the heirs at law of Drury Williams were parties defendant, and that they were required by the Court to be served personally with the rule nisi, to establish said copjr, and that they were served agreeably to said requirement. We think, therefore, that there were defendants to said proceeding, and that they were served. It does not appear that the Superior Court of Twiggs county had not jurisdiction of the case. The Superior Courts are Courts of general jurisdiction, and at the time of said proceedings, they were Courts of final resort, and the highest judicial tribunals known to the Constitution and laws: The Superior Court of Twiggs county gave this judgment. It stands there unreversed; and stands there as the judgment of a Court of competent jurisdiction. It, like all other judgments, may be impeached for fraud, and such irregularity as would avoid a judgment, but none such appears in the record before ns. It is objected further, that Drury Williams, the feoffor, of Henry Williams, one of the lessors of the plaintiff, left a will and devised the land, and that the devisees of the land, and not the heirs at law of the said Drury Williams, should have been made parties defendant. This objection is founded on the assumption,that the judgment of the Court establishing the copy deed is res inter alias acta, and cannot be admitted in evidence against the devisees or those claiming under them. It appears in this record, that one of the heirs at law is also a devisee, and upon the assumed ground of objection, the judgment is good against that devisee. But under the term “ parties,” the law includes all who are directly interested in the subject matter, and had a right to make defence, or to control the proceedings and to appeal from the judgment. 1 Greenleaf, Sec. 523. A devisee of lands is an hseresjactus, and so made by the will of the testator. Bac. Ab. Heir and Ancestor, B. If there had been no actual or valid grant or donation of the land by the testator in his life time, the devisees were intersted in the subject matter, and on that ground might have defended the application to establish the deed — and might have appealed from a verdict adverse to their interest. The record and deed was therefore admissible against them.

It is again objected, that as the original deed could not be admitted as evidence, without proof of execution, the copy deed must also be proven to be the copy of a genuine original. We think, that'the judgment of the Court established the copy offered in evidence as the copy of a genuine original conveyance. The case of Beverly vs. Burke in 9th Ga. is referred to as an authority to sustain this objection. It does not appear in that case, as it does in this, that the subscribing witnesses were dead. In the case of Keeling vs. Ball, it being a suit oh a lost bond, which had been attested by witnesses, the names of whom had been forgotten, Lord Kenyon who tried the case, held that if it appeared who the subscribing witnesses were, they must be produced; but that it was the business of Courts of justice to apply the general principles of the law to the new cases as they arise. He said that was a new case, for it did not appear that the plaintiff could by any possibility know who the subscribing witnesses were. The subscribing witnesses, if they had been known, were the best evidence, but not being known, the rule had to be relaxed, and inferior evidence admitted. Appendix to Peake’s evidence XXIV, 1st Am. from 5th London Edition. See also, 7 Waddell, 125. Here I think the judgment establishing the deed would have been good without the witnesses, if they had been known; for it cannot be presumed that a Court would allow a copy of a forged or fraudulent deed to be established. , But it must clearly be right when the attesting witnesses are dead.

We think that for the rejection of the deed, judgment of the Court below must be reversed.

[2.] We are of opinion that the Court below very properly refused to give the request of counsel for plaintiff in charge to the jury. Conveyances of land must be in writing. Parol evidence may be given in evidence, in proper cases, to prove the contents of written conveyances, but it is inadmissible as evidence to pass the title.

Judgment reversed.