123 Ga. 626 | Ga. | 1905
(After stating the facts.) 1. The defendants, objected to each of the powers of attorney to William B. Yan Benschoten, when it was offered in evidence, because it “failed to describe the land described in plaintiffs’ petition by county, number, or district;” and upon the further ground that it did not in any way connect Benjamin G. Barker with the parties creating the power of attorney, and no evidence was offered by the plaintiffs connecting such parties with Benjamin G. Barker and showing that they were his heirs at law. Another ground of objection made was abandoned in this court', There was no merit in the first ground, as the power given covered all the real estate belonging to the donors in this State, wherever situated.
2. The second ground of objection ’ was meritorious,' unless the plaintiffs by subsequent evidence removed it; as, at the time the objection was made, there was absolutely nothing in evidence which tended to show that the. parties executing either of these papers had derived title in any wáy from Benjamin G. Barker, the grantee of the State. The plaintiffs sought to show that the parties creating these powers of attorney were the heirs at law of Benjamin G. Barker, by certain recitals contained in the deed from William B. Yan Benschoten and wife to J. M. Stiger, this deed being more than thirty years old. This was the next piece of evidence introduced, the probative value of which will be considered later. The judge was not bound to sustain the objection to the powers of attorney at the time when it was made, especially as the case was before him at chambers, but could properly admit them, subject to be ruled out, unless their relevancy was shown by subsequent evidence. We shall presently come to the real, substantial error which he committed, which renders the ruling just discussed of but little or no importance and requires a reversal óf the case upon its merits.
In Dixon v. Monroe, 112 Ga. 158, it was broadly held : “A recital in a deed that the parties making it are heirs at law of a former owner is no evidence of the fact, except as against parties to the deed and their privies.” The same ruling was made in Hanks v. Phillips, 39 Ga. 550, and Yahoola Co. v. Irby, 40 Ga. 479. In none, of these cases, however, was the deed containing the recital an ancient deed. In Yahoola Co. v. Irby, McCay, J., said: “We see no reason why the recital in a deed by John and Jacob Doe, that they are the heirs-at-law of William Doe, should be evidence of that fact. Any other two men might make a deed with the same recital in it, and there would be no reason why the recital, in one of the deeds should be taken for true rather than in the other. To make out a title to land, all that would be necessary, if this were the law, would be to write a deed to it, setting forth that the maker of the deed was the heir-at-law of the true owner.” Carver v. Astor, 4 Peters, 83, was cited, wherein'it was held that the general rule is, “that a recital of one deed in another binds the parties and those who claim under them. Technically speaking, it operates as an estoppel, and binds parties and privies; privies in blood, privies in estate, and privies in law. But it does not bind mere strangers, or those who claim by title paramount to the deed. It does not bind persons claiming by an adverse title, or persons claiming from the parties, by title anterior to the date of the reciting deed. . . But there are cases in which such a recital may be used as evidence even against strangers. If, for instance, there be the recital of a lease, in a deed of release, and in a suit against a stranger the title under the release comes in question, there the recital of the lease, in such release, is not per se evidence of the existence of. the lease. But if the existence and loss of the lease
The rule, as we understand it to be established by the great weight of outside authority, is, that before the recitals in an ancient deed, of the death of the former owner and of the relationship of the grantor to him, can be taken as evidence of the facts recited, there must be evidence of the death of the person making the recital or declaration and that he was de jure related by blood or marriage’ to such former owner, or proof of undisturbed possession, under the deed, of the premises conveyed for such a length of time as to raise a presumption that such recitals in the deed are true. While the rule seems generally recognized that in matters of pedigree the declarations of
4. The plaintiffs not only failed to prove a perfect title, but
Judgment reversed.