Field v. Boynton

33 Ga. 239 | Ga. | 1862

By the Court —

Lyon, J., delivering the opinion.

1. The entries or memoranda of sales by the sheriff in a book, kept by him and in his office for that purpose, he being dead, ought to have been admitted as evidence, on the ground that they were entries made in the course of his official business, against his interest at the time when made, and that he is since deceased. 1 Greenleaf on Evidence, section 147, and eases cited.

2. Upon the same principle and for the same reason, the receipt of the sheriff for the purchase-money, although made long after the occurrence of the transaction, and after he was out of office, was admissible, and ought to have been allowed by the Court to go to the jury as evidence. Declarations of this character are received in consequence of the death of the party making them. They embrace not only entries in books, but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time of the fact declared or at a subsequent day. To render them admissible, it must appear that the declarant is deceased, that he possessed competent knowledge of the facts, or that it was his duty to know them, and the declarations were at variance with his interests. 1 Greenleaf on Evidence, section 147.

As the evidence offered possessed all these requisites it ought not to have been rejected. The fact that the memoranda of sheriff sales had been mutilated by tearing off the amount at which the land sold, does not alter the rule, such mutilation not having been done by the party offering it, nor so material as tq destroy the value of the entries.' There is enough left to establish the fact that the defendant desired to prove, which was, that the land was sold at sheriff’s sale and that he was the purchaser.

3. The point to which this testimony tends, and on which depends its materiality is, whether it constitutes a color of title sufficient to create an adverse holding. We hold that it is. Color of title is anything in writing connected with the title which serves to define the extent of the claim. Watts vs. Smith, 19th Georgia, 12 ; Beverly vs. Burke, 9th Georgia, 444; S. C., 14th Georgia, 12. It is wholly immaterial how imperfect or defective the writing may be, considered as a deed, if it is in writing and defines the extent of the claim, it is a sign, semblance or color of title. An entry by the sheriff on the fi. fa. of the levy, sale and purchase of the land has been held sufficient: Watts vs. Smith, 19th Georgia, 12; and so has sheriff’s deed, although unaccompanied by the execution: Burkhalter vs. Edwards, 16th Georgia, 593. In this case there is evidence of a purchase at sheriff’s sale and the payment of the purchase-money, evidenced by the written memoranda and receipt of the purchase-money by the sheriff, who made the sale. These are sufficient to constitute color of title in aid of possession. And if the defendant has had actual possession of the lot, bona fide, claiming title under the same for seven years prior to the commencement of the suit, his is the paramount title.

Let the judgment be reversed.

Mr. Justice Jenkins dissented from the judgment of the major! of the Court in this case.