Acme Brewing Co. v. Central Railroad & Banking Co.

42 S.E. 8, 115 Ga. 494, 1902 Ga. LEXIS 464
CourtSupreme Court of Georgia
DecidedJune 4, 1902
StatusPublished
Cited by14 cases

This text of 42 S.E. 8 (Acme Brewing Co. v. Central Railroad & Banking Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acme Brewing Co. v. Central Railroad & Banking Co., 42 S.E. 8, 115 Ga. 494, 1902 Ga. LEXIS 464 (Ga. 1902).

Opinion

Fish, J.

The Central Railroad and Banking Company brought an action of ejectment against the Acme Brewing Company, to recover “part of lot 2 in block 12 in the southwestern commons of the city of Macon, as fully described and laid out by Augustus Schwabb, city engineer, in the map and survey made by him of that portion of the city of Macon known as the southwestern commons of said city, said map being made in October and November, 1851, and being the official map and survey of that portion of the city of Macon,” the tract sued for being also described by metes andfbounds, and including an encroachment upon Hammond street, which was one of the boundaries of the same. There was also a count for mesne profits. ■ In addition to the plea of not guilty, the defendant pleaded prescriptive title based upon adverse possession, under a bona fide claim of right, by it and its predecessors in title, for more than seven years, under written evidence of title; and also that it and its predecessors in title went into possession of the premises sued for in good faith, and, while in the bona fide possession thereof, made permanent improvements thereon Of the value of $20,000, and that the land, independently of these improvements, did not exceed in value $300, and had no rental value except such as might be given it by reason of the improvements thus placed upon it. It prayed that, if its title was held not good, the value of the improvements should be set off against the value of the land, and that the plaintiff be required to pay it the value of these improvements. Upon the trial the jury returned the following verdict: “1st. We the jury find for the plaintiff. 2. We find four hundred dollars for land in dispute for plaintiff. 3. We find for the plaintiff fifty dollars per year from March 26th, 1891, to date, for rent. 4. We further find the title to vest in defendant when the above has been complied with.” The defendant made a motion for a new trial, which was overruled, and it excepted.

In addition to the general grounds in the original motion for a new trial, there were numerous special grounds contained in an amendment thereto. The first of these special grounds alleged that the court erred in admitting in evidence “ a certified copy, from the record of deeds of Bibb superior court, of a deed made by the Mayor and Council of the City of Macon, dated January 20, 1854, to Thomas P. Stubbs,” to “lot of land No. 2 in Block 12 as represented in the plan of survey of the Southwest Commons of [498]*498the City of Macon,” etc., “ which deed closed with the following recital : “ In witness whereof, the said party of the first part hath caused these presents to be subscribed by the Mayor of the City of Macon and the common seal of said city to be hereunto affixed by the clerk of said city, and these presents to be delivered the day and year first above written. [Signed] Ed. L. Strohecker, Mayor, (Seal). In Presence of A. R. Freeman, C. C. W. S. Williford, Not. Pub.”

The motion for a new trial states that to this certified copy “ no seal was ’attached other than the scroll after the name Strohecker,” and that there were attached thereto “two affidavits not entitled in this cause, or in any cause.” One of these affidavits was made by H. M. Comer, dated May 20,1897, and recited, “ that he is the president and one of the receivers of the Central Railroad & Banking Company of Georgia, and likewise president of the Central of Georgia Railway Company, and that the following described instrument [the original deed of this copy] is not in his possession, power, custody, or control, or in the possession, power, custody, or control of said Central Railroad & Banking Company of Georgia, or of the Central of Georgia Railway Company, and that he believes said original deed is lost or destroyed; that he verily believes that said original deed was at one time in existence and is now lost or destroyed; and he makes this affidavit in order that a certified copy of said deed from the record may be introduced in evidence.” The other affidavit, which was dated the 19th of November, 1900, was similar to this, and was made by John M. Egan, who in the affidavit described himself as “ The president of the Central of Georgia Railway Company, which has succeeded to the papers, offices, and property of the Central Railroad and Banking Company of Georgia.” The defendant objected to the introduction of the certified copy of the deed, upon the following grounds: “ 1. That said affidavits that they believed said deed is lost is not sufficient proof, they not having shown that it is not still in the possession of Stubbs. 2. That said deed, whilst it purports to have been made by the Mayor and Council of the City of Macon, is not signed by the Mayor and Council, the corporate name of said municipal corporation, but is simply signed 1E. L. Strohecker, Mayor.’ 3. That there is a recitation in said deed that it has caused the clerk of council to affix the common seal of said city to the deed, while no such seal being in fact attached negatives the idea that there had [499]*499ever been a complete execution and delivery thereof. 4. That the presumption is, that if said deed was ever delivered it is still in the possession of Stubbs, the grantee therein. 5. Because the allegation in said declaration is, that they are suing for lot two (2) in block (12) according to Schwabb’s map, and said deed does not sustain said allegation, there being no ref erence whatever to Schwabb’s map therein.” After the admission of this certified copy from the record of deeds, the plaintiff put up a witness, Pritchard, who testified that he was “the custodian of the title deeds of the plaintiff,” and had been for four years; “ that he had made thorough search for said deed among the papers and could not find it;” that it was “ not in the possession, custody, or control of the plaintiff;” that he believed “ it has been destroyed or lost;” that he was “unable to say that [plaintiff] ever had possession of it; ” that he had not “ searched among Stubbs’s papers for nor called upon [his] executors for or children for it.”

1. As the plaintiff claimed under Stubbs, and introduced a deed from Stubbs to the Macon & Western Railroad Company, conveying the same lot described in the deed from the city to him, we do not think there is any merit in the objection that the plaintiff did not show that any search had been made among Stubbs’s papers for the original deed from the city to him. The presumption is that when Stubhs sold and conveyed the lot to the Macon & Western ■ Railroad Company he turned over to his vendee the deed which he held from the city to the property, it not appearing that this deed embraced any other land than that in question. After he had parted with his title to the property, he was no longer the natural or proper custodian of the deed under which he had held that property alone.

2. The objection that the seal of the municipal corporation was not attached to the deed was not meritorious. It is true that the certified copy from the record did not show an attempt to reproduce the seal of the municipal corporation, probably for the reason that the clerk of the superior court, who recorded the original deed, could not copy the municipal seal upon the record of deeds. The certified copy did show a scroll, after the name of Strohecker, the mayor, with the word, “ Seal,” written in it. It did appear, therefore, that some sort of a seal was attached to the original deed. So the record showed that there was a seal attached to the [500]*500deed, but failed to show its precise character or description.

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Cite This Page — Counsel Stack

Bluebook (online)
42 S.E. 8, 115 Ga. 494, 1902 Ga. LEXIS 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acme-brewing-co-v-central-railroad-banking-co-ga-1902.