5 Ga. 6 | Ga. | 1848
By the Court.
delivering the opinion.
There is a brief dictum of Spencer, J. in a case read from New York, to the effect, that the name of a lessor in ejectment, used without his consent may be stricken out. There he was held a competent witness,if not a party for the defendant; he was not indemnified, and it did. not appear that his name was necessary for plaintiff’s recovery. No motion was made — no judgment had.
Pullen was clearly an incompetent witness, upon the ground of 'interest. He was called to support the defendant’s title claiming under him. He had been vouched. It was his interest to defeat the plaintiff’s recovery, because, if the plaintiff succeeded, he would be liable over to the defendant, upon his contract with him for the sale of the land. He was under bond to him, to execute to him good and sufficientwarrantee titles. He occupied the position •of a grantor to the defendant. The judgment of recovery for the plaintiff, could be used as evidence against him in a future suit, by the defendant against him, on his bond; or in defence of a suit by him on the notes for the purchase money. “ Where the-interest (says Mr. Greenleaf) of the witness arises from liability •over, it is sufficient that he is bound to indemnify the party calling him, against the consequences of some fact essential to the-judgment. It is not necessary that there should be an engagement to indemnify him generally against the judgment itself,, though this is substantially involved in the other; for a covenant of indemnity against a particular fact, essential to the judgment, is in effect a covenant of indemnity against such a judgment.. Thus the warrantor of title to the property which is in dispute, is generally incompetent as a witness for his vendee, in an action concerning the title. And it malíes no difference in what manner the liability arises, nor whether the property is real or personal. If tho title is in controversy, the person who is bound to :make it good to one of the litigating parties, against tho claim of' .the other, is identified in interest with that party, and therefore,
If a vendor sell without covenant of warranty, or restricted to claims set up under himself, he is a competent witness for his vendee. Last authorities. The obligation of the bond in this case, is to make the defendant good and sufficient warranty titles, which is equivalent in its.extent to a general covenant of warranty. The title to the land is a fact in issue; in this suit its object is to try the title. It is against the loss of the title, that the bond is designed to protect the defendant. It is very clear that the witness is interested — if he by his testimony defeats the plaintiff’s recovery, he loses nothing; if he does not, he is liable to the defendant. If the effect of a judgment is to render him liable to costs only, he is incompetent, (Lewis vs. Peake, 7. Taunt. 153) where he has been called upon to defend. To disqualify, the liability must be immediate — it must spring directly out of the judgment. Here it is immediate. Clark vs. Lucas, M. & Ry. 32. Briggs vs. Crick, 5 Esp. 99. Martin vs. Kelly, 1 Stew. Alab. R. 198. Nor is it necessary that the warranty be express — an implied warranty will disqualify. Hurmance vs. Vernory, 6 Johns. R. 5. Hale vs. Smith, 6 Greenleaf, 416. Baxter vs. Graham, 5 Watts, 418. It has been ruled, that one who has put the defendant in ejectment into possession under a contract to sell and convey, is not a competent witness for the defendant, and that is precisely this case. Jackson, ex. dem. Roosevelt, vs. Stackhouse, 1 Cowen’s R. 122.
See farther upon the general proposition that a vendor is not competent to support the title of his vendee, when under a general covenant of warranty. Swift vs. Dean, 6 Johns. R. 523. 3 Wend. 240.
In reply, it may be said that the witness had made a deed, under which the plaintiff claimed as part of his chain of title, and if the plaintiff fails in the action, he will be also liable to him, and therefore his interest is balanced and he is acompetent witness. The answer is, that the witness was sworn on his voir dire, and stated that he had never made a deed to the plaintiff, and for the purpose of determining his competency, that statement, it being
We think, therefore, that the Court erred in admitting Mr. Pullen as a witness.
No person is a Justice of the Peace in this State, unless he is
That Charles Fields was a Justice of the Peace in the county of Walton, when he attested this deed, is proven prima facie, by his official attestation as such. In the case of all public officers, it is not necessary, in the first instance, to produce their commissions; proof of their acts in their public capacity is enough. 1 Phillip's Evid. 226. By Buller, J. in Berryman vs. Wise, 4 T. R. 366. Leach's Crown Cases, 585, Lessee of Willink vs. Miles, 1 Peter C. C. R. 429.
It is to rebut this prima facie evidence, that this proofis offered; and it is contended, that in as much as the official character of Mr. Charles Fields, J. P. can be proved by his acts, that Mr. Charles Fields’s want of official character can be proved by testimony, that he did not act in that character. I do not think that this follows in this case. Is the knowledge of persons resident in that county, at the time of the execution of the deed, to be presumed to be so accurate, and so general, as not to admit of the fact that such a man as Charles Fields acted as a Justice of the Peace therein, without their knowing it l I admit that the probabilities are against the fact being so, without well informed, observing'men, connected by official or professional position with the people, knowing it. And yet, such a thing is possible. The negative testimony offered does not amount to demonstrative certainty. Whereas, this is one of the few cases, where the record from the Executive office will demonstrate, with absolute certainty, a negative, to wit: if the fact be so, that Charles Fields was not a Justice of the Peace lor that county, at the time he signed this deed. In legal contemplation, and in fact, he was no Magis * trate unless he was in commission for that year — if he was com missioned, it is in legal contemplation true, that his commission was recorded. The record will, therefore, show that he was acting as a Magistrate if the fact be so, and with equal verity that he was not, if the fact be so. The record is the highest evidence,
It is suggested that this man’s attestation is good, although he was not a Justice of the Peace for Walton county, fox in that event, the inference is, that he was a Justice of the Peace for some other county. This idea goes upon the assumption that the official acts of Justices of the Peace dre valid out of the county for which they are elected and commissioned. Their election, commission and officialoath,coniine their officialpowers to the counin which they are elected. It has been held that marriages, solemnised out side of the jurisdictional and official limits of a Magistrate, are valid. Perhaps so, and if so, upon grounds wholly irrespective of the official powers of the Magistrate. See 2 Kent’s Com. 87 to 93, and notes.
In the numerous decisions which this Court has been called to makes in cases growing out of our statute of limitations, we have assumed, as the basis of those decisions, that is intended to be, and that we will make it, in Georgia, a statute of repose. We look upon it as a highly beneficial statute, and in its effects calculated to quiet titles, suppress litigation, promote confidence in the tenure of property, and advance all the interests of commerce.— Its policy is that of an anti-litigating jubilee, (as to lands,) once in seven years. There is no hardship in this policy. Let it be distinctly understood throughout the community, that he who has a claim to land, must assert it within seven years from its accrual or lose it, and it is not to be apprehended that many rights will be lost for want of diligence. And it is not in fact any injustice to require such diligence. He who has a claim to land, with the means of enforcement at his command, and no impediment in his way, yet, who slumbers over it for seven years, permitting his neighbor to improve it by expenditure in the meantime, resting with confidence upon the title which he holds, deserves to lose it. If the statute, in its fair and just import, is enforced,, and
Hence we have disregarded some of those subtle distinctions and unreasonable exceptions to the statute, to be found profusely scattered through the English and American books. Exceptions which learned and good men in both countries have not ceased to regret, and which they have sustained, not because commended to their approval for their equity, expediency, or reasonableness, but from a disposition so prevalent (and I will add so praiseworthy) in Courts, to adhere to authority. Our own State having had, until recently, no Court so organized as to give for the State, an authoritative construction of her statutes, we are not hedged in by State decisions and usages, and feel free to give to the statute a construction in accordance with the original intent. These things premised, it is due to candor to say, that the weight of authority is against the decision we now make — that is to say, the weight of authority is against the position, that one entering upon land under an executory contract, when the consideration money is not paid, acquires an adverse possession, which time will mature into a good title. A contract for the sale of land by notes for the purchase money and bond, conditioned to make titles when the .purchase money is paid, has not been usually held color of title until the purchase money is paid. We think upon principle it is, and that such principles have been settled in the books, as will upon the score of authority justify our opinion. According to the case before me, the contest is'not between the defendant and his vendor. He does not plead the statute a,gainst
(This statement assumes that the deed from Pvllen to Woodr ward was genuine, a fact controverted on the trial.) These things are important to be borne in mind.
It is agreed, that if the title under which the defendant entered, be ever so defective, the possession is notwithstanding adverse.— It does not depend upon the soundness of the title. So if a grantee enter under a deed not executed in conformity to law, believing the title to be good, his possession is adverse. Sumner vs. Stephens, 6 Metc. 337. 2 Ibid, 32. 3 Ibid, 91. 16 Serg. & Raw. 214. Jackson vs. Todd, 2 Cow. N. Y. R. 183. Jackson vs. Sharp, 9 John. R. 162. 12 Ibid, 365. 16 Ibid, 293. Ewing vs. Burnet, 8 Peters, 41. Angel on Limi. 435. 4 Georgia Reports, 115.
In Panlet vs. Clark, the Supreme Court held, that possession may be adverse and constitute a bar, even when ouster is in terms repelled, and not to be presumed from the circumstances of the case. 4 Peters, 504.
In Bradstreet vs. Huntington, the same Court says : “ Wher•ever the proof is that one in possession holds for himself to the •exclusion of all others, the possession so held, is adverse to all •others, whatever relation in interest and privity he may stand in to others. This doctrine is held in reference to lessors, mortgagors, trustees, and tenants in common. Willison vs. Watkins, 3 Peters, 53. 5 Peters, 439. If the quo animo, the mind of the tenant, is to hold the property as his own, against the claim of others, which mind will be ascertained by proof, these cases make the possession adverse, even though there be privity between himsplf and others. Whatever may be said of the technical dis
So one entering under a void devise, is protected by the statute against the heirs. 16 Peters, 455. 6 Munf. 355. 1 Wheat. 479.
So also, one entering and claiming title to land, under a parol gift only, holds adverse possession. Sumner vs. Stephens, 6 Met. 337. 5 Ibid, 469.
It is to show generally, by these authorities, that the statute will protect against the legal title, still retained and outstanding in the vendor, that I refer to them; and that in this case it does not follow, because, by the contract the legal title is retained by, defendant’s vendor, that the possession is not adverse.
What are the respective rights and obligations of the parties to this contract 1 In Equity the vendor, as to the land, is the trustee of the vendee, and the vendee is the trustee of the vendor, as to the purchase money. Atk. R. 572. 1 Ch. Cas. 39. 6 John. Ch. R. 398. Either party may go into Equity and have the contract executed, and the same equities subsist between the parties, either of them, and assignees or purchasers with notice. 10 Moll. 518. 2 Eq. Cas. Ab. 32. Pl. 43. 2 Vesey, Jr. 437. 16 Vesey, 249. 17 Vesey, 433, S. C. 6 John. Ch. R. 398.
Upon payment of the money, the purchaser may compel the vendor to convey. So also, his assignee. So the vendor has a lien upon the land for the purchase money, which he can assert in Equity against the vendee and purchasers from him. The vendor, no doubt, too, may maintain ejectment, within the statutory term, against the vendee, and it has been held that the vendee has such interest in the land, as may be seized and sold under execution. 18 John. R. 97. 3 Caine’s R. 188. 7 John. R. 206. Upon this point the authorities are in conflict. 17 John. R. 331.
Although by this contract the title never passed to the purchaser, yet in Equity, by virtue of the agreement, the estate was in the vendee, and was in him transmissible by descent and devisable by will. - Ch. Kent in Champion vs. Brown, 6 John. Ch. R. 398.
Now if the purchaser has an equitable estate in the land, he has the power to enforce his contract in Equity against the vendor and
The question, however, made by this record, is not whether the contract would create a color of title, and an adverse possession against the vendor in behalf of his vendee; nor is it between that vendee and the assignee of the vendor’s interest in the contract, who may be, at the same time, the purchaser of the legal title. But it is between the vendee and a stranger to the contract, who has none of the equities against him, which his vendor has, who holds no notes for the purchase money, and therefore, no lien upon the land and no right of reclamation upon it. His relation to the defendant is very different from what the vendor’s would be, were he sueing for the land. This distinction seems to have had groat weight with the Court in the great cases in Pennsylvania, growing out of the sale by executory contract, of the proprietary lands-of that State. It was held that the limitation act of that State did not apply to actions of ejectment brought to enforce the payment of the purchase money. The Court seemed to consider that it was agreed, between .the parties, that the land should be a security for any length of time for the purchase money. The inference is that the statute was no bar for that purpose only, and
The language of our Statute is broad enough to comprehend this and every other suit, or action, or writ. It seems to have no reference to 'the relations of the parties, except in the exceptions named. It says not one word about adverse possession or color of title. It lays a plain burden upon the plaintiff, and prescribes to him a plain duty. It intends, in all cases of right or claim of title, to require the claimant to assert his remedy within the time prescribed, at the peril of having that remedy barred. Its language is to the effect, that, no suit or action of any kind, shall be brought for land, no matter upon what right or claim originating, after seven years from the accrual of such right or claim. It is particular in its sjjecification of some remedies, and then in all comprehending terms, excludes every possible remedy by suit, unless brought within the limited time. And as if intensely anxious that there should be no misapprehension of its meaning, it designates the causes of action upon which suit or action may arise, in such terms as must include all. For it bars all writs, suits or actions whatsoever-, which may be sued or brought, “ by occasion or means of any title or cause” of action. It intends, not only to bar suits for the quieting of titles to lands: but suits brought upon any cause of action. This last specification embraces this case : It may be said that this is not a suit, really to try titles — or would not be if defendant’s vendor were sueing — but a suit to enforce a security. Be it so. The action is founded on some cause, and by the Statute, such an action is barred. Again, the act, not content with declaring that suits shall be brought within seven years, in addition, declares that they shall be brought “at no time after seven years.” It is in the following words : “ Be it enacted, that all writs of formedon in descender, formedon in remainder and formedon in reverter of any lands, tenements or hereditaments, or any other writ, suit or action, ivhatsoever, at any time hereafter to be sued or brought by occasion or means of ayy title, or cause heretofore accrued, happened or' fallen, or which may hereafter descend, happen or fall, shall be sued and taken within seven years next after the passing of this Act, or after the title and cause of action shall or may descend, or accrue to the same, and at no time after the said seven years” The Act then proceeds to
Any plain, sensible man, it seems to me, looking at this Statute for the first time, and applying its provisions to the case before me, would say at once, that the plaintiff having a title to the land in question, was bound to bring his action for it within seven years from its accrual — that the question could not arise under the Statute, whether the defendant’s possession was adverse or not — but that the only question that could arise, is, has the plaintiff used the diligence on his part which is required of him ? Learned men, long ago, have laid the fact of diligence at the foundation of the acts of limitation. Thus Lord Coke says, commenting upon the acts of limitation prior to the Statute 32 Henry VIII. .- “ Many suits, troubles and inconveniences did arise, and therefore, a more direct and commodious course was taken, which was to endure forever, and calculated so to impose diligence on, and vigilance in him that -was to bring his action, as that by one constant law, certain limitations might save both for the time present and for all times to come.” 2 Inst. 95. Stovy’s Conf. of Laws, 482. It is true, however, that the Courts have contrived to put the question of diligence very much out of view, as the criterion of judgment on acts of limitation, and for it, have substituted a question as to the quo modo and the quo animo, in which the defendant acquired his possession. Much of the learning found in the books in relation to limitations, is highly beneficial, and many of the rules which have grown up by judicial action, under the Statutes in England and in this country, are salutary and necessary. Yet it becomes even our humility to say, that many of the exceptions to the operation of the Statute, which the Courts in Great Britain have engrafted upon it, and the subtle distinctions by which they have been sustained, are alien to the original policy of the. Statute, violative of its spirit, and eminently unsuited to the condition of our country. Over and over again have the Judges in England and in this country, regretted these departures from the primary intent and plain meaning of the Statute. And shall we follow them, through regard only to authority? Authority which has not upon us the. obligation of law! We have not adopted either the English or Amer-can construction of the Statute of James. Our limitation Act was passed in 1767 — it was a Provincial Statute — it was repealed and revised in 1806. Our adopting Act of 25th Feb. 1784, declares
The question whether an executory contract is color of title, and made the possession'adverse, was ably discussed before the Court of Errors of the State of New York, and the principles there settled, go very far to sustain the decision we now make. One of the questions discussed in that case, was whether a possession under a paper writing, was adverse 1 The’paper writing purported to be a permission from McKay to the elder La Frombois, to take two lots of land in his seigniory on Lake Champlain, and to settle himself thereon, and a promise, that when the conveyances of the lots should be made, (for one of which he should pay no rent, only one of acknowledgment, in case the lot of land he should take should be required to establish the domain,) he would replace to him as much improved land, as might be found on the
In Moore vs. Webb, 2 B. Munroe’s R. 283, it is held, that though one enter under an executory contract of purchase, and such entry in its legal character is a tenancy at will, yet, such an one may hold adversely in fact. The cases are numerous that settle, that when one enters under an executory contract, and the consideration is paid, the possession is adverse, although no deed has been given. See Angel on Limitations, 437. 5 Metcalf R. 173. 12 John. 491.
The case of Hunter vs. Persons was, in principle, the same with this, and I consider, fully sustains the view we take of it. There A contracted to purchase lands of B, and paid part of the purchase money, but .titles never were made. A gave the land to his son C, who went into possession; and it was held that C’s possession was adverse, both to A & B. In the case before us, none of the consideration was paid ; in that, a part remained unpaid. If any was unpaid, the cases are analagous. 2 Baily, S. C. R. 59.
Upon a fair construction of our own Statute, as applicable to this case, and upon the principles and authorities stated and referred to, we are constrained to sustain the decision of the Court below, upon the plea of the Statute of Limitations.