12 Ga. 450 | Ga. | 1853
By the Court.
delivering the opinion.
An action of ejectment was brought against John B. Griffin, to recover lot No. 207, in the 22d district of what wras formerly Muscogee, now Talbot County. There wTere two demises in the declaration, one in the name of Daniel Getler, the drawer, the other from Martin W. Stamper, the feoffee of Getler. The deed from Getler to Stamper, dated the 7th of October, 1847, being made while there was adverse possession to the premises, it wTas abandoned on the trial \ and the only evidence relied on, in behalf of the plaintiff, was a grant from the State to Getler, for the lot, dated the 1 Ithi of September, 1832 ; the possession of the premises by the defendant at the commencement of the suit and the value of the annual rent.
The defendant pleaded the Statute of Limitations ; and to support his defence, offered in proof, first, tw70' Justice’s Court executions, dated in April, 1845, with a return of “ no personal property to be found” by the Constable, the 12th of October, 1845, together with a levy by the Constable, of the lot in question, dated the 21st of October, 1845. Ihefi.fas. were in favor of E. A. Hunter vs. William L. Glanlon. , The judgments upon which these' executions issued were likewise tendered in evidence. Also a deed from the Sheriff to Griffin, for the land, dated the 3d of December, 1845. -
The defendant next introduced a judgment in favor of James
This testimony was Objected to, but admitted by the Court, and this constitutes the first exception in the bill.
A Sheriff’s deed was offered from Thomas N. Robinson to William T. Horton, dated the 10th of November, 1842, reciting the sale under the fi.fa. of the true lot, and all other necessary facts, which went to show the regularity of the sale.
The defendant then produced and read in evidence a bond ■for titles, from David Getler to Joseph Morris, for the land, dated the 18th of November, 1837, whereby Getler obligated himself to make titles to Morris, Christmas ensuing. Rush was next sworn, who testified, that he bought the land from Morris, in 1838, and that he leased the land to one B.- Boty, for five years, who went into possession and remained on the premises, till the beginning of the year 1843. Rush paid Morris a part of the purchase money at the time he bought, and the residue was collected by law the latter part of 1842. The testimony shows, indeed the fact is not denied, that Getler never has been paid for the land by Morris, nor by any body else. Morris admits that he did not pay him, but swears that Rush was to do so. Rush denies this.
B. Boty, who had occupied the land some five years, was examined three times by commission, by the plaintiff. The controversy was, whether he held under Getler or Rush. On two of his
This testimony wTas objected to, on the ground that the letter itself should have been exhibited to the witness, and that he could not be called on to testify as to its contents. But. the objection was overruled by the Court. And this is the second error assigned.
The witness was further asked, if he had not stated to certain persons who were named, to wit, J. A. Ellison and others, that he went on the land of his own accord; he answered that he had no recollection'of ever having made any statements contrary to what he had swmrn to in the interrogatories.
Ellison having proven, that witness had made the statement to which his attention was called, if as interrogated by plaintiff’s counsel, as to his knowledge of the general character of Boty for truth, and'whether he would believe him on his oath; said that he thought that he would not. Plaintiff then offered one Hall, to support the general good character of the witness. But the Court held, that the witness having been discredited, by showing that he had made contradictory representations as to the facts in issue, it was not competent to sustain his credit by any inquiry as to his general good character. And this ruling constitutes the third error complained of.
The testimony being closed, the Court was asked to charge the Jury, that if Morris went into possession of the premises in dispute, under a bond for titles, and held possession under such bond, that such possession was not adverse; and that if Morris transferred the bond from Getler to himself, to Rush, who took and held possession under said bond and transfer; that then neither his possession, nor that of Boty, his tenant,
All of which the Court refused ; but on the contrary, instructed the Jury, that a purchaser of land with an unconditional bond for titles, holds the possession independently and in his own right, and not in subordination to the title of the vendor. That he is not a tenant .at will, nor in any other form; nor is he liable to be ejected by the seller; nor does it affect the question, whether the purchase money be p'aid or not; that the possession of the vendee is, eo instanti the contract is executed, adverse to that of the vendor; and further, that if Boty took a lease from Rush, the transferree of Getler’s bond to Morris, that his possession was adverse to that of Getler.
To all and each of which charges so given, as well as the refusal to charge as requested, the plaintiff by his counsel excepted.
The points to be discussed in this case, may be reduced to four. P
First. — The admissibility of the testimony of the Sheriff, Giddens, to explain the mistake in the entry of the levy upon the fi. fa. under which the land was sold.
Second. — Whether it was competent to examine the witness Boty, as to the contents of the letter written by him to Kellem, without exhibiting the letter itself?
Third. — Whether, when a witness is discredited by showing that he has made contradictory statements, as to the facts about which he swears, his credit may be sustained by proof as to his general good character? and
Fourth. — Whether the possession of a vendee of land, under an unconditional bond for titles from his vendor, is adverse to the rights of the vendor, before the purchase money is paid.
By turning to the record containing the testimony of B. Boty, it will be found to be directly in the teeth of this rule. “ On the cross-examination, the defendant asked the witness if he had not, on the 20th of December, 1848, written a letter lo G. W. Kellem, in which he stated that he went on the land of his own
Further comment upon this point would be useless.
1. By disproving the facts stated by him, by the testimony of other witnesses.
2. By general evidence, affecting his credit for veracity.
3. By proof that he has made statements out of Court contrary to what he has testified to at the trial.
Here the question is, whether when a witness has been discredited, by proving that he made contradictory statements, it is competent to support his testimony by proof of his general good character, for truth and veracity. Mr. Philips asserts that it is reasonable to admit general evidence, but cites no authority. Mr. Greenleaf states the proposition in the very language of Philips, and in support of the proposition, refers to the case of Rex vs. Clarke, 2 Starkie, 241. See 1 Greenleaf §469.
But it never was decided that if a witness was contradicted as to any fact of his testimony, either by his own declarations at other times or by other witnesses, evidence might be admitted to prove his general good character. Suppose a witness contradicted himself on the stand, does this give a right to intro
In Russell vs. Coffin, (8 Pick. Rep. 143,) this point was considered, and the practice, as stated in the text books, to which I have referred, repudiated. Parker, C. J. says, “ if it were to obtain, great delay and confusion would arise, and as almost all cases are tried upon controverted testimony, each witness must bring his compurgators to support him when he is contradicted ; and indeed that it -would be a trial of the witnesses, and not of the action.”
It is supposed that the case of Fain vs. Gathright, (5 Geo. Rep. 6,) is an authority directly in favor of the affirmative of this proposition. And it is due to candor to state, that it is not unlikely that the Circuit Judge was misled by that case. But the contest there was not between the vendor and vendee, but between the vendee and a third person. And with that explanation and to that extent, we re-affirm the judgment there rendered. It was right in the case made.
Each party, it is true, has his remedy at Law; the vendorto sue
We will not say that in such a case as this, where an unconditional bond for titles is given, the vendee might not, by an absolute sale of the property, or by some other overt act, so far repudiate the legal relation subsisting between him and the vendor, as to render his holding adverse, even before and without the payment of the purchase money. But unless, and until this is done, there would seem to be no inconsistency between his possession and his vendor’s right.
In this case, Morris having merely transferred the land of Getler to Rush, and no part of the pinchase money having ever been paid, by either of them or any one else, Rush stands in the same relation to Getler which Morris occupied, and no better. Nor was there any change in the position of the parties toward each other, until October or November, 1842, when the lot was sold as the property of H. Rush. And this we think, was the starting point of the Statute of Limitations; and being within seven years next preceding the commencement of the suit, the bar does not attach.
I would merely add, that nowithstanding the mistake in the’’ levy, the deed under it being for the right lot, would constitute sufficient color of title to support the defendant’s possession, had the requisite time elapsed-
Judgment reversed.