9 Ga. 160 | Ga. | 1850
By the Court.
delivering the opinion.
The plaintiff in the Court below brought his action against the defendant, to recover damages for overflowing his land with water by the erection of a mill-dam, and also for injury done to his health caused thereby. The plaintiff alleged title to the premises, consisting of two lots of land, Nos. 249 and 256, in the 9th district of Murray County.
In whom did the plaintiff’s evidence show the paramount title to the land to be, at the trial ?
The plaintiff’s evidence showed'that the lots of land had been granted by the State to Connelly and Garr, the drawers thereof, and by them had been respectively conveyed by deed to Wm. McCamey, Sr. who was said, on the argument, to be dead, although the record does not show that fact.
There was no conveyance of the land shown to have been made from William McCamey, Sr. to the present plaintiff in the action. William McCamey, the present plaintiff, derives his title through Robert McCamey, who purchased the land, as the property of Timothy McCamey, at Sheriff’s sale. There is no evidence of any deed of conveyance of the land from William McCamey, Sr. to Timothy McCamey, the defendant in execution; there was some evidence, however, that he had a bond for titles, but no evidence as to the payment of the purchase money. The evidence, as disclosed by the record, showed most clearly, in our judgment, the paramount title to the land to have been in William McCamey, Sr. and not in William McCamey, the plaintiff in the action.
Had the plaintiff’ only showed the possession of the defendant in execution, and the sale of the land under it by the Sheriff to Robert McCamey, and the deed of Robert McCamey to the plaintiff, he would have made out a prima facie case, which would have entitled him to maintain his action. Then, it would have been incumbent on tire defendant to have shown that the paramount title to the land was in another party; but the plaintiff, it seems, saved the defendant the trouble, by showing that fact himself.
If Timothy McCamey had no interest in the land, at the time of the levy, or an inferior interest to the true owner, the pointing out the land to be levied on did not enlarge that interest. Whatever interest the defendant had in the land was sold, and nothing more. When the plaintiff, by his own evidence, showed that the paramount title to the land was in another, the defendant was not estopped from insisting on that fact in his defence.
This evidence was objected to .upon the ground, therewas no allegation in the declaration which would authorize its admission.
. The allegation is, that by the erection of the mill-dam, “an unhealthy pond of standing water has been raised.” This allegation, in our judgment, is not sufficient to have admitted the evidence, under the Judiciary Act of 1799.
Whether that “unhealthy pond of standing water” made the plaintiff or his family, op any one else sick, is not alleged.
Let the judgment of the Court below be reversed.