11 Ga. 636 | Ga. | 1852
delivering the opinion.
There can be no doubt, we apprehend, that where a deed is recorded, which is not required by law to be recorded, a certified copy from the records, would not be evidence under the Statute making’certified copies from the record of deeds evidence.
Had the proof of Mesham gone to this length, it would have been sufficient. It is true, that in the attestation clause, it purports to be delivered, and this, it might be argued, was equivalent to a formal declaration of delivery by the grantor. But it purports to havebeen signed and sealed also. If one of the requisites, namely, that of delivery', may be dispensed with, why not either or both of the others ?
Plaintiffs next read in evidence a copy deed from James Moore to Morgan L. Brown, to the land, and tendered a deed from Brown to Croxton, the defendant in execution, which the claimant objected to also, on account of the defect in the probate. Henry Johnson, one of the attesting witnesses, swore that he “saw Brown assign the within deed, and that Edmund D. Holdridge assigned with him at the same time, as a subscribing witness.” The objection was overruled, and the testimony permitted go to the Jury.
If the Court erred in suffering a copy from the record of the lost deed to be read in evidence, there can be no question as to this, the probate being still more defective in this case than the former.
This mode of admitting copy deeds from the records, is a very great relaxation of the Common Law rule, and has been productive of endless frauds in this State. And while a rigid practice or construction would work inconvenience, still it may not be amiss to remit parties to original proof, where the requisites of the Statute have not been complied with.
But the alias execution having issued in this case, by order of a Court of competent jurisdiction, it cannot be collaterally attacked and set aside, while the judgment of the Court stands.
The plaintiffs having closed their case, claimant introduced one Daniel Matheson, who swore that he was Sheriff of Stewart County, in ] 842, and in that character, raised a large sum of money by levy and sale of Gideon H. Croxton’s property; and that William A. Fort, the assignee of Shields & Ball, notified him to hold up the money on account of his lien, which was the oldest against the defendant; that in compliance with this notice, he did retain the money, until sometime afterwards, when, with the consent, and by the instructions of Fort, he appropriated eighty or a hundred dollars of the fund.
In our judgment, this instruction is directly in the teeth of the decision of this Court in Newton vs. Nunnally, 4 Geo. Rep. 356.