15 Ga. 491 | Ga. | 1854
delivering the opinion.
It will be remarked, that Jacob Tison is one of the lessors of the plaintiff. Now, the object of this testimony was, as the record discloses, to prove by the party himself, whose name was thus used, either that he never existed, or that he was dead before this suit was brought! That the proof, if procurable, (?) would be material, there cannot be a doubt. It would defeat a recovery under this count, in the writ. The Judge was unquestionably right, therefore, in allowing the commission to issue, leaving to the applicant the more difficult task, as it would seem, of establishing by the witness his own nonentity, or subsequent demise.
While we re-affirm the position heretofore occupied by this Court, that it is competent to grant a non-suit) whero there is no proof to support the issue—
A motion for a non-suit, at Law, is like a demurrer in Equity. And if, admitting all the facts proved, and all reasonable deductions from them, the plaintiff, on all the proof, ought not to recover, the non-suit ought to be ordered.
Wé are aware that there is a conflict of authority, upon this point, in this country. (Elmore vs. Grimes 1 Peters. 471.
Was there, then, testimony in this record, apart from- the grant or paper title sufficient to carry this case to the Jury ? It .is in proof, that Baldrée went into possession of the premises in dispute, in 1841, holding expressly as the tenant of the Ti-.sons; that Yawn,. the defendant in ejectment, gave him ten dollars for his claim, both of them still acknowledging paramount title in the plaintiffs. But more than this, when Turner purchased of the Tisons, Yawn said to one of the Tisons, he would never get his pay, and offered him two hundred dollars for the land. Upon the doctrine of tenancy, then, shall he be permitted to deny this title ?
Precedents may be found on both sides of this practice, as was admitted by this Court, in the case cited. And there are plausible reasons, to sustain either view of this question. We are inclined, however, to adhere to the opinion already expressed, namely: that the better course is, to institute a direct proceeding, to correct the mistake in the grant.
Mr. Grimsley must die, as will, in tho course of nature, all who could explain this error. The title to this tract of land, may be litigated a thousand years hence. Is it not desirable that there should be record evidence perpetuated, establishing who was the actual drawer of lot No. 104, in the 7th district of-what was originally Early county ? And are not these and-numerous other reasons, which will readily suggest themselves, sufficient to justify this Court in maintaining the ground already taken, that for the correction of this mistake, in the name of the grantee, a direct proceeding should be instituted ?
So far, then, as it was proposed, by this proof, to explain the mistake in the grant, we think the testimony was rightfully rejected ; but for another purpose, a portion of it, at least, should have been admitted.