171 Ga. 303 | Ga. | 1930
The motion to dismiss the main bill of exceptions is without merit.
It is well settled that a defendant in ejectment can defeat the plaintiff therein by showing a paramount title to the premises in dispute, outstanding in another, without connecting his possession therewith. Sutton v. McLeod, 29 Ga. 589; Brumbalo v. Baxter, 33 Ga. 81; Roe v. Maund, 48 Ga. 461; Jenkins v. So. Ry. Co., 109 Ga. 35 (34 S. E. 355); Waters v. Durrence, 119 Ga. 934 (47 S. E. 216).
The plaintiff claims title to the lot in dispute, under the following:. Deed from Julius Bates, the grantee of said lot in a grant from the State, to John Arnett, dated March 26, 1861; deed to said lot from J. J. Bates, as administrator de bonis non with will annexed of Julius Bates, to the plaintiff, dated July 2, 1913; and quitclaim deed from the heirs at law of Julius Bates to plaintiff to tlie lot in dispute, dated July 21, 1913. To show paramount title to this land outstanding in one other than the plaintiff, the defendants introduced in evidence a certified copy of a deed from Julius Bates to J. M. Mountgomery to this lot, dated June 5, 1842, attested by David Sirmans, W. W. Smith Sr., and L. J. Knight (the last attesting as a justice of the peace), and recorded in the clerk’s office of Berrien superior court. This deed purports to have been signed by Julius Bates by his own hand, and
Plaintiff claims title to the lot in dispute under the deed from Julius Bates to John Arnett. On a former trial of this case the plaintiff introduced this deed. Whereupon the defendant, J. II. Gaskins, filed his affidavit in which he attacked said deed as a forgery. Thereupon the presiding judge passed an order withdrawing the case from the consideration of the jury, and directing that the issue of forgery vel non be separately tried by the jury. To this order no exception was taken by either the plaintiff or the defendants. Thereafter the case came on for trial; and, without' any objection on the part oE either the plaintiff or defendants, the issue of forgery and the main case were tried together. This trial resulted in a nonsuit; and the judgment nonsuiting the case was dealt with and reversed by this court when the case was last before it. Gaskins v. Guthrie, 162 Ga. 103 (132 S. E. 764). When the case went back for trial, the defendants moved that the issue of forgery be first tried, and the court overruled this motion; and to this ruling the defendants except in one of the grounds of their motion for new trial. An objection which does not extend to the verdict can not properly be made the ground of a motion for new trial. Barber v. Barber, 157 Ga. 188 (121 S. E. 317); Faison v. Lanier, 164 Ga. 742 (139 S. E. 540). This being so, we can not pass upon the question whether the court erred in overruling the motion of the defendants to have the issue of forgery vel non tried separately. To review this ruling the defendants should have excepted pendente lite, and have assigned error thereon in this court.
Under the previous ruling of this court, the trial judge did not err in admitting in evidence, over the objection of the defendants, the deed from Julius Bates to John Arnett, dated March 26, 1861, said deed being offered by the plaintiff and admitted as an ancient document, and purporting to convey the land in con
Under the previous ruling of this court, the trial judge did not err in admitting in evidence the deed from John Arnett to John Hewett, dated February 10, 1880, said deed being offered by the plaintiff and admitted as an ancient document. Gaskins V. Guthrie, supra. Said deed was admissible, subject to the attack made by the defendants on its genuineness.
The above ruling is applicable to the admission in evidence of the deed from John Hewett to Daniel J. McGee, dated August 5, 1881, purporting to convey the lot of land in question; to the admission in evidence of the deed from McGee to Thomas Paulk, W. W. Gaskins, M. Henderson, and J. W. Paulk, dated November 11, 1881; and to the admission in evidence of the deed from J' W. Paulk and M. Henderson to Thomas Paulk and W. W. Gaskins, dated June 8, 1888, conveying a half undivided interest in the lot of land in dispute. These deeds were tendered as ancient documents, without any attack upon their genuineness; and were held, when the case was here before, to be admissible under the proof offered to establish that they were ancient documents.
The court charged the jury as follows: “The judge instructs you in this connection that a deed without witnesses is legal and binding between the parties; and in such case and in this case, if you believe that Julius Bates made, signed, and delivered the deed involved to John Arnett, and you further believe that the plaintiff has in all other respects proved his case, and is entitled to recover under the evidence in the case, the plaintiff would be entitled to recover, though you believe that N. L. Osborn’s, one of the witnesses, name was forged to the deed.” To the issue as to the genuineness of the signature of N. L. Osborn, the subscribing official witness to the deed referred to by the judge, this instruction was not properly adjusted. When a deed is put in evidence, purporting to have the name of one subscribed as clerk of the superior court as a subscribing witness, and it is shown that the signature of such person is not genuine, such proof, in the absence of rebutting evidence, is conclusive evidence of the forgery of the paper, and the fact can not be weakened by supposition. Durham
The court charged the jury as follows: “If you believe that the deed in question was a genuine deed from Julius Bates, and you believe that the plaintiff was in other respects and is in other respects entitled to recover, then your verdict would be in favor of the plaintiff.” The defendants except to this charge, upon the ground that it is not a correct statement of the law applicable to this, case, and because the deed from Bates to Arnett had by movants been attacked as a forgery, and the testimony of witnesses had been admitted to the jury to show that it was a forgery, and yet the court failed to instruct the jury that said deed was attacked as a forgery, and ’did not in said instruction or elsewhere instruct the jury as to what evidence would be sufficient to prove that said deed was a forgery, because the jury were told that if they found that this one single deed was genuine the plaintiff would be entitled to recover, and they should so find. There being evidence tending to show that this deed was an ancient deed and genuine, and evidence offered by the defendants attacking its genuineness, this charge was applicable, and the court did not err in giving it.
The court charged the jury as follows: “The law provides that it is a general rule of evidence that ancient documents purporting to be a part of the transaction to which they relate are admissible in evidence. A deed more than thirty years old, having the appearance of genuineness on inspection, and coming from the proper custody, if possession has been consistent therewith, is admissible in evidence without proof of execution.” The defendants except to this charge, upon the ground that it does not correctly state the law of Georgia; that the law requires that proof of the existence of ancient documents for a period of at least thirty years must be shown before they are admissible in evidence; that it was erroneous, because the deed referred to in said charge did not have the appearance of genuineness on inspection, and this fact had already been determined when the deeds referred to had been submitted to Judge Dickerson, and he by order on that date permitted an affidavit of forgery to be hied. This charge was not erroneous for any of the reasons assigned.
The jury, after having deliberated on the case for several hours, returned to the court-room and addressed to the judge the following inquiry: “Your honor, we would like to ask if it is necessary for an official witness to sign a deed to make it a good deed?” To this inquiry the court replied: “It is not.” To this instruction the defendants except upon the ground that it was erroneous and prejudicial. Where one of the issues ill the case was whether the deed from Julius Bates to John Arnett was a forgery, the proof relied on to show forgery being that the signature of the official witness of the deed was a forgery, this instruction tended to confuse and mislead the jury, and was error.
In the 13th ground of the motion for new trial the defendants complain that the court failed to charge the jury what the law was with reference to forgery, and how deeds could be attacked as forgeries, and what evidence was sufficient to authorize the jury to find that the deeds in question were forgeries. In the 16th
The court charged the jury as follows: “There'is one thing I inadvertently omitted, gentlemen; and that is, in order for the plaintiff to recover, that the chain of title from the State to himself must be complete. If, in the intervening links, one should be in favor of the defendant, it would vitiate the whole title.” To this instruction the defendants except on the grounds that it is not a correct statement of the law applicable to the ease; that it instructs the jury that though an outstanding title had been proved by the defendants, it would not avail them unless they connected themselves with it, and because the defendants had introduced in evidence the deed from Julius Bates to L. M. Mount-1 gomery, conveying the lot in dispute, which bore date prior to the date of the deed from Julius Bates and John Arnett. This charge was not erroneous or any of the reasons assigned.
It is contended that the court erred in charging the-jury,' immediately after the charge just considered, as follows: “Whether there is anything of that kind or not is not for the judge to decide, but it is for the jury. There is another principle of law that I overlooked giving you; and that is, that if in the consideration of all the evidence in the case you believe that the paramount outstanding title to the property in controversy was in some other.person than the plaintiff, the plaintiff could not recover. They must recover on the strength of their own title.” The errors assigned are that this instruction is not a correct statement of the law; that it confused the jury, because it failed to give them any instruction whatsoever as to what it took to constitute a paramount title, and that it left to the'jury to determine what was paramount title. These objections to this instruction are without merit.
In the cross-bill of exceptions the plaintiff excepts to the rejection of the testimony of J. J. Bates, a witness in his behalf.' This witness testified that Julius Bates was his grandfather; that E. L. Bates, M. P. Bates, N. B. Bates, C. V. Jones, and L. J. Campbell, brothers and sisters of witness, and himself were the sole sur-’ viving heirs of Julius Bates on July SI, 1913, so far as his knowl-' edge extended; that Julius Bates left a will, a copy of which is in •
The plaintiff in the cross-bill of exceptions further excepts to the refusal of the court to give in charge to the jury certain in
An exception to the admission in evidence of certain marriage certificates, on the ground that it was contrary to law, presents on question for decision by this court.
Judgment reversed on each hill of exceptions.