6 Ga. App. 90 | Ga. Ct. App. | 1909
B. F. Leverett, as administrator de bonis non of Elijah Munkus, sued H. H. Tift in trespass, for cutting the timber upon lot of land number 3 in the 2d district of originally Irwin, now Turner county. The case turns upon the title ’of the plaintiff, as the cutting was admitted and there was a verdict for the defendant. The plaintiff made a prima facie case, by showing plat and grant from the State of Georgia to Elijah Munkus, together with a certified copy of his letters of administration. This plat and grant were dated March 25, 1841. It was shown also that the defendant had cut the timber, under a chain of title originating in a forged deed purporting to have been made by Munkus to James A. Green on December 4, 1846; though, so far as the defendant himself is concerned, he seems to have acted in
It was ruled in the case of Williams v. Rawlins, 10 Ga. 491, that either party in a case involving title to land is entitled to impeach by proof, and without making affidavit of forgery, the genuineness of any deed offered in evidence, and if the deed "be sprung upon the party by surprise, and he is not prepared with proof to assail it,” a continuance may be granted upon suitable
Therefore there was no error in admitting the deed in evidence. If the deed is recorded upon proper probate, and is not admissible as an ancient document, the filing of this affidavit casts the burden of proof upon the party offering the deed. If no affidavit of forgery is filed, the party against whom the deed is offered may nevertheless attack it; but in that event he assumes the burden of proof. This is also the rule where the deed, though more than thirty years old, is for any reason not admissible in evidence without further proof, as an ancient document. If the deed is an ancient document and the preliminary showing is made which entitles it to introduction in evidence as such, the filing of an affidavit of forgery will have no effect; for though the deed may be attacked as a forgery, the burden of proving the forgery is upon the attacking party, and can not be shifted by the filing of an affidavit. These are the necessary deductions from the following cases. Knight v. Suddeth, 126 Ga. 231 (55 S. E. 31); McArthur v. Morrison, 107 Ga. 796 (34 S. E. 205); Patterson v. Collier, 75 Ga. 419 (58 Am. R. 472); Sibley v. Haslam, 75 Ga. 493. Therefore, if the plaintiff in this case was correct in his proposition that the deed was not admissible as an ancient document, and he desired to shift the burden of proof to the defendant, it was necessary for him to file an affidavit of forgery, since it was recorded on proper probate.; and this, as well as the ancient character of the instrument, afforded prima facie evidence of its authenticity. An attentive reading of the case of McArthur v. Morrison, supra, sometimes considered as authority for the proposition that an affidavit of forgery can not be tendered to a deed offered as an ancient document, will show that it is authority only for the proposition that this affidavit can not be filed in the event it
It would be an absurd proposition to say, if A took a defective title emanating out of B, that B or his administrator could part with that title and nevertheless recover in trespass from A for injury or damage done to the property. Reduced to its last analysis, the plaintiff’s proposition amounts to this: that although Elijah Munkus sold this land nearly seventy years ago, and parted with all his title and interest in it, 'the plaintiff, who has recently taken out letters of administration on his estate, can nevertheless sue' and recover damages for the trespass committed upon this property, as to which neither Munkus nor his estate has had the slightest right or title for nearly three score years and ten, simply because the deed by which Munkus sold the property was not-recorded, and the defendant bought under a forged chain of title, purporting to have emanated from the same source. Of course,.
4. The court fairly submitted to the jury the question as to whether the deed from Munkus to Cobb was genuine or not; and their verdict necessarily declared it to be genuine. The plaintiff’s right of recovery, therefore, failed at this point, and alleged erroneous rulings made in admitting deeds by which the defendant attempted to connect himself with the title which Munkus conveyed to Cobb were wholly immaterial. In trespass the defendant need not show title in himself, where the plaintiff has never been in possession and his action depends solely on his title; the defendant succeeds whenever he shows that true title was not in the plaintiff at the time of bringing suit. We see no reason for granting a new trial. Judgment affirmed.