133 Ga. 472 | Ga. | 1909
(After stating the foregoing facts.)
In the brief of counsel for plaintiff in error it was argued that if the evidence rejected had been admitted, it would have shown a prescriptive title. Apparently, from the recitals of the bill of exceptions, the deed from Davant, executor, .to Norman and that from Norman to Weeks were offered as muniments of title, and not as color of title. In connection with the former deed there is no suggestion in the bill of exceptions on the subject of prescription or color of title, even in the assignment of error. In regard to the latter the only mention of that subject is in the assignment of error where it is said that “Said deed would, at least, have been good as color of title.” But it is not stated that it was so offered, or that the court’s attention was called to the fact that reliance was sought to be placed upon it as such. One can not tender a deed as a muniment of title, offering it as conveying actual title, invoke a ruling on that subject, have it rejected as being invalid as a conveyance of title, say nothing to the court as to an offer of it as color of title in connection with other evidence to be thereafter tendered, and later obtain a reversal on the ground that it might have been admissible for the latter purpose. The burden of showing that the court erred in the ruling which he made rests upon the plaintiff in error who seeks a reversal. The presumption is in favor of the court, not of the plaintiff in error. When a paper is offered as a deed, the primary and natural understanding, in the absence of anything to the contrary, would be that it was offered as a conveyance. If objection is made to it
The principle above announced has been - recognized by the courts of a number of States. Barksdale v. Toomer, 2 Bailey (S. C.), 108; Main v. Gordon, 12 Ark. 651; Jones v. Ry., 53 Ark. 27 (13 S. E. 416, 22 Am. St. R. 175); Jones v. State, 79 Tenn. (11 Lea) 468; Wheeler v. Rice, 8 Cush. 205; Young v. Otto, 57 Minn. 307 (59 N. W. 199); Maxwell Land Grant Co. v. Dawson, 7 N M. 133 (34 Pac. 191).
There was some discussion of the subject of laches and estoppel, but neither the pleadings nor the evidence made out any case which would have authorized a verdict in favor of the defendant on that ground.
Judgment affirmed.