Roe v. Doe ex dem. Tindal

| Ga. | Jan 15, 1858

Lumpkin, J.

By the Court. delivering the opinion.

[1.] The plaintiff tendered in evidence, a certified copy of what purported to be a deed from Joshua Tindal to Humphrey Rowel, dated 7th October, 1822, and recorded the 28th of May, 1836: Joshua Tindal making his mark to the deed, and it purports to have been witnessed by Adam and Williamson, neither of whom attest the instrument officially. Nor is it proven or acknowledged before any body. The Court rejected the copy for any of the purposes for which it was offered — either as an authentic copy of a conveyance executed according to law, or as an ancient paper, or as an acknowledgment of the payment of the purchase money for the land, so as to vest the equitable title in Rowel.

The case of Winn and others against Patterson, 5 Peters, 232, and 6 Peters, 663, are relied on to justify the introduction of this paper. But there is a fundamental difference between the proof of the power of attorney in that case, and the deed in this. The power of attorney purported to be signed and sealed in the presence of Abram Jones, J. P., and Thomas Howard, Jr. It was admitted that Jones was a Justice of the Peace at the time, and William Robinson, the D. Clerk who recorded the deed, testified that he knew the hand writing of Abram Jones, and that his signature was genuine.

What evidence is there here, that there ever was an original deed ? For aught that appears to the contrary, this deed may .have been executedin 1836, at the time it was recorded. It is not officially attested. It is proven by nobody. And to crown all, Tindal signs his mark only.

[8.] The objection to the deed from. Johnson to Patillo’ was well taken; no judgment or fi. fa. being shown.

[3.] Counsel for plaintiff requested the Court in writing to charge the jury, that if Merrett admitted title in Hand during the time he held possession of the land; he admitted himself tenant under Hand, and could not dispute Hand’s title.

We do not think the proof justified this request. Patillo informed Merrett that Hand owned the land; Merrett replied that he had supposed that he himself was the true owner. but that if the land was Hand’s, he would buy it; and he authorized Patillo to give Hand $50 for the land. Surely this is not attorning to Hand, or acknowledging himself as Hand’s tenant

There are but two questions in the other bill of exceptions which we deem necessary to notice.

[4.] Merrett went into possession of the land in dispute in January, 1845, under the parol gift from Keaton. In 1850, Keaton made him a quit claim deed. Did that relate back to 1845, and take effect from the commencement' of Merrett’s possession, so as to constitute adverse possession in Merrett to the whole lot ?

No authority has been cited to justify this position, and we think it against principle; and consequently hold, that Merrett was restricted to his possessio pedis, or actual occupation of the premises, which seems from the proof to have been limited to the north half of the lot, which is not in controversy.

[5.] The other question grows out of the refusal of the Court to charge as requested, as to the manner of proving •the death of Tindal, and its effect upon the action. The Judge was requested to instruct the jury, that if Patillo' received information as to the death of Tindal, and believed it tq.be true, and that the case was proceeding for the benefit of Patillo alone, that these facts were entitled to much consideration from the jury. On the contrary, the Judge charged the jury, that they must be satisfied that Tindal was. dead at the commencement of the suit, and the fact of his death must be proven by persons acquainted with him.

It is now the law of this Court, as settled by several adjudications, that if the lessor of the plaintiff be dead at the time of trial, no recovery can be had on his demise. If he be alive at the commencement of the suit, and die before trial? cost only can be recovered. If dead at the time suit was brought, there can be no recovery in his name of any thing.

As to the mode of proving the death, it is certainly not restricted, as the Court charged, to the acquaintances of the deceased. But without discussing this point, let us direct our attention to the facts in this case, and enquire whether the information and belief of Patillo, as to the death of Tindal, are to be considered as proof against him, and to what extent ?

We remark, that the information and belief of a mere witness, would not suffice, and would' even be ruled out as incompetent testimony. But Patillo is a party to the action j a lessor of the plaintiff. Does that make a difference ?

By a careful examination of all the Acts passed by the Legislature, authorizing a party to be examined at common law, it will be seen that his testimony is treated as the answer of a defendant in equity, to a bill for discovery. In equity, the defendant answers to the best of his knowledge, information, and belief. Information and belief fall short of knowledge, still they are testimony, and a Court of Equity might decree upon such an answer, it being warranted in believing, whatever the party believed to be true against his interest. At any rate, a Court of Chancery would attach importance to such an admission.

Now then, Patillo, declaring as he did, under oath, in this, case, that from information obtained through General Morgan, his counsel, upon inquiry instituted in Washington county, the former residence of Joshua Tindal, that he, Patillo, believed that Tindal was dead, the jury were entitled at least to have this testimony fairly submitted to them, under a proper charge from the Court, arid we think the Court erred in refusing to give it.

[6.] The presumption arising from the extreme old age of Tindal, is not conclusive as to his death. The civil law will presume a person living at a hundred years of age, and the common law does not stop much short of this. 2 Greenleaf.1 § 278 c. and notes ; Best on Presumptions, 139 ; Benson vs. Olive, 2 Strange, 920.

The foregoingpoints must control this case, and we have neither the time nor the inclination to notice all the changes rung upon them, in the hundred and one requests to charge, embodied in thebill of exceptions. In that “ Pandora’s Box’-' of evils, the New Trial Act of February, 1854, the clause-most pregnant with mischief, is that which makes it obligatory to grant a re-hearing in all cases where the presiding Judge shall refuse to give a legal charge, in the language requested, when the charge so requested is submitted in writing, This one Act has more than doubled the delay and cost of litigation in Georgia, without possessing one redeeming feature of public benefit.

New trial granted.