By the Court.
Jenkins, J.,
delivering the opinion.
The jury having rendered a verdict for the plaintiffs in the Court below, defendants moved for a new trial, on several grounds, all of which were overruled by the Court, and to the overruling of each, plaintiffs in error except. I postpone, to the others, the consideration of the 1st, 2d, and 3d grounds.
[140]*140(1.) There had been a sheriff’s sale of this land, under a fi. fa., from a Justice’s Court, in. the county of Twiggs, (as appeared from a recital in the sheriff’s deed), at which defendánts in error purchased. Where their deed was offered in evidence, plaintiffs demanded, as preliminary evidence, the production of the fi. fa. This was not done, but an attempt was made to shew diligent and ineffectual seareh for it; and the Court having decided'that its absence was sufficiently' accounted for, admitted the deed, which ruling was made the fourth ground of the motion'for a 'new trial. It does appear that very considerable and sufficient diligence was used in the search, both for the fi fa. and the judgment under which it issued. We know that it is do uncommon thing for. the records and files of the Justices’ Courts in Georgia to be lost, and in this case the evidence shows, that in the district whence this' fi. fa. emanated, the Court itself does not now exist. The absence of this fi.fa., and of the judgment, and the want of all evidence as to the date of either, must have very great effect upon the value of this sheriff’s deed to the purchaser, whenever it comes in conflict with an older deed, passing title out of the defendants in execution, but upon the question of its admissibility in evidence in this case, we must affirm the judgment of the Court below.
(2.) The fifth ground, is predicated upon the admission by the Court, against the objection of plaintiffs in error, of. evidence of the general bad character of Hickman, who was both grantee and grantor in plaintiffs’ chain of title. He is connected with the case in no other way than as his name appears in two links of the title. It was not attempted to show that he ever practiced any fraud regarding the title with which he was so connected, but simply to prove that his general character was bad. This is certainly a novel way of attacking title to real estate. How many titles to real estate, in this, and every other country, might be invalidated, if it were legitimate to overthrow them by proof that they had passed through bad men. Very bad men may very honestly acquire, and very honestly transfer, very good titles. This evidence should have been rejected.
[141]*141(3.) The Court, upon motion of defendants’ counsel, required plaintiffs in error to produce certain deeds, appertaining to the title of the latter to the land in dispute, admitted to be in their possession, and in Court; and in permitting defendants to give them in evidence to the jury, and on this ruling, the sixth ground is predicated. .This is held to be erroneous, for the reason that no notice had been given to produce the papers. It is conceded, that had such notice been given, in conformity with the law, the ruling of the Court would have been correct. This position would seem to have been assumed upon the idea, that the power of the Court to require the. delivery of the papers, and the right of the opposite party to use them, depended upon the notice to produce them. There is, here, a misconception of the object of the notice, and of the power of the Court. The object of the notice, is simply to compel the party to bring the papers into Court. Being in Court, either with or without notice, the power of the. Court over them is precisely the same.. It exists independently of the Acts of the Legislature, and the rule of Court relative to notice previously-given to-produce them in Court, to be used as evidence.. We find no error in this.
In the 7th ground, it is assigned as error, that the Court erred, in refusing to charge the jury, “ that as the law stood, in 1820, any one could take out a grant by paying grant fees; and that it was not necessary for Huff (under whom,, as the gran-tee of White, the drawer of the lot in dispute, plaintiff in error claims) to have obtained the original plat and grant to White, in order to make his title good.”
We are not prepared to hold that, at any time, any body, a stranger for instance, without the production of authority from the drawer of a lot of land, under our lottery system, could legally take out a grant for the same in the drawer’s name. If there be any statute authority for such an act, it has escaped my notice; none.such has been cited. That a practice of this kind may have grown up, is not improbable, but we will not say it was legal. If the Court was requested to charge the jury, that the validity of Huff’s title to the land, from White, did not depend either upon the fact that
[142]*142Huff, himself, obtained the grant to White from the State, or, upon the fact, that, contemporaneously with the delivery of White’s title to him, he also received the grant which had been issued to White; and refused so to charge, there was error in the refusal.
I am constrained to put this ruling hypothetically, because I do not clearly understand the latter clause of this ground.
(4.) The 1st, 2d, and 3d grounds may be considered together. They aver that the verdict is without evidence, against evidence, against the weight of evidence, contrary to law and to the following charge of the Court, “that if the jury were satisfied, that the deed from White to Fields, (under whom defendants in error claim), in 1824, was based upon a gambling consideration, then no title vested in Fields, but thereby vested in the next of kin of the said White.”
This charge was in conformity with the Act of 1764,^ Cobb’s Digest, 725. But, whether the verdict of the jury was contrary to this charge, or contrary to law, depends upon the facts of the case.
To bring the case under this charge, there must have been evidence first, that the deed to Fields was based upon a gambling consideration, and secondly that defendants in error had no available title to this land, other than that derived through Fields. We must, therefore, look into plaintiffs’ title, as developed in the brief of evidence.
There is no question that the title passed originally from the State to White, by grant. This grant was put in evidence by plaintiffs below, who also deduced title from White, through Fields and Cartledge, to their ancestor, John S. Porter. Their chain of paper title was complete, and they closed with a prima faeie case made. It must be noted, however; as it will hereafter become important, that the deed from White to'Fields, bore date 22d May, 1824. Defendants below then put in evidence a deed from White, (the same person), to one Huff, for the same land, dated 30fch December, 1.820, which was just one day after the date of the grant to White. Then a deed from Huff to one Anderson, of later date, and there closed, relying upon having shewn title out [143]*143of "White, anterior to the execution of his deed to Fields.
Plaintiffs below then, in rebuttal, introduced Benedict White, the State’s graqtee, who testified that he had never made a deed for the land in dispute to Huff. That the deed in evidence from him to Huff was a forgery.
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By the Court.
Jenkins, J.,
delivering the opinion.
The jury having rendered a verdict for the plaintiffs in the Court below, defendants moved for a new trial, on several grounds, all of which were overruled by the Court, and to the overruling of each, plaintiffs in error except. I postpone, to the others, the consideration of the 1st, 2d, and 3d grounds.
[140]*140(1.) There had been a sheriff’s sale of this land, under a fi. fa., from a Justice’s Court, in. the county of Twiggs, (as appeared from a recital in the sheriff’s deed), at which defendánts in error purchased. Where their deed was offered in evidence, plaintiffs demanded, as preliminary evidence, the production of the fi. fa. This was not done, but an attempt was made to shew diligent and ineffectual seareh for it; and the Court having decided'that its absence was sufficiently' accounted for, admitted the deed, which ruling was made the fourth ground of the motion'for a 'new trial. It does appear that very considerable and sufficient diligence was used in the search, both for the fi fa. and the judgment under which it issued. We know that it is do uncommon thing for. the records and files of the Justices’ Courts in Georgia to be lost, and in this case the evidence shows, that in the district whence this' fi. fa. emanated, the Court itself does not now exist. The absence of this fi.fa., and of the judgment, and the want of all evidence as to the date of either, must have very great effect upon the value of this sheriff’s deed to the purchaser, whenever it comes in conflict with an older deed, passing title out of the defendants in execution, but upon the question of its admissibility in evidence in this case, we must affirm the judgment of the Court below.
(2.) The fifth ground, is predicated upon the admission by the Court, against the objection of plaintiffs in error, of. evidence of the general bad character of Hickman, who was both grantee and grantor in plaintiffs’ chain of title. He is connected with the case in no other way than as his name appears in two links of the title. It was not attempted to show that he ever practiced any fraud regarding the title with which he was so connected, but simply to prove that his general character was bad. This is certainly a novel way of attacking title to real estate. How many titles to real estate, in this, and every other country, might be invalidated, if it were legitimate to overthrow them by proof that they had passed through bad men. Very bad men may very honestly acquire, and very honestly transfer, very good titles. This evidence should have been rejected.
[141]*141(3.) The Court, upon motion of defendants’ counsel, required plaintiffs in error to produce certain deeds, appertaining to the title of the latter to the land in dispute, admitted to be in their possession, and in Court; and in permitting defendants to give them in evidence to the jury, and on this ruling, the sixth ground is predicated. .This is held to be erroneous, for the reason that no notice had been given to produce the papers. It is conceded, that had such notice been given, in conformity with the law, the ruling of the Court would have been correct. This position would seem to have been assumed upon the idea, that the power of the Court to require the. delivery of the papers, and the right of the opposite party to use them, depended upon the notice to produce them. There is, here, a misconception of the object of the notice, and of the power of the Court. The object of the notice, is simply to compel the party to bring the papers into Court. Being in Court, either with or without notice, the power of the. Court over them is precisely the same.. It exists independently of the Acts of the Legislature, and the rule of Court relative to notice previously-given to-produce them in Court, to be used as evidence.. We find no error in this.
In the 7th ground, it is assigned as error, that the Court erred, in refusing to charge the jury, “ that as the law stood, in 1820, any one could take out a grant by paying grant fees; and that it was not necessary for Huff (under whom,, as the gran-tee of White, the drawer of the lot in dispute, plaintiff in error claims) to have obtained the original plat and grant to White, in order to make his title good.”
We are not prepared to hold that, at any time, any body, a stranger for instance, without the production of authority from the drawer of a lot of land, under our lottery system, could legally take out a grant for the same in the drawer’s name. If there be any statute authority for such an act, it has escaped my notice; none.such has been cited. That a practice of this kind may have grown up, is not improbable, but we will not say it was legal. If the Court was requested to charge the jury, that the validity of Huff’s title to the land, from White, did not depend either upon the fact that
[142]*142Huff, himself, obtained the grant to White from the State, or, upon the fact, that, contemporaneously with the delivery of White’s title to him, he also received the grant which had been issued to White; and refused so to charge, there was error in the refusal.
I am constrained to put this ruling hypothetically, because I do not clearly understand the latter clause of this ground.
(4.) The 1st, 2d, and 3d grounds may be considered together. They aver that the verdict is without evidence, against evidence, against the weight of evidence, contrary to law and to the following charge of the Court, “that if the jury were satisfied, that the deed from White to Fields, (under whom defendants in error claim), in 1824, was based upon a gambling consideration, then no title vested in Fields, but thereby vested in the next of kin of the said White.”
This charge was in conformity with the Act of 1764,^ Cobb’s Digest, 725. But, whether the verdict of the jury was contrary to this charge, or contrary to law, depends upon the facts of the case.
To bring the case under this charge, there must have been evidence first, that the deed to Fields was based upon a gambling consideration, and secondly that defendants in error had no available title to this land, other than that derived through Fields. We must, therefore, look into plaintiffs’ title, as developed in the brief of evidence.
There is no question that the title passed originally from the State to White, by grant. This grant was put in evidence by plaintiffs below, who also deduced title from White, through Fields and Cartledge, to their ancestor, John S. Porter. Their chain of paper title was complete, and they closed with a prima faeie case made. It must be noted, however; as it will hereafter become important, that the deed from White to'Fields, bore date 22d May, 1824. Defendants below then put in evidence a deed from White, (the same person), to one Huff, for the same land, dated 30fch December, 1.820, which was just one day after the date of the grant to White. Then a deed from Huff to one Anderson, of later date, and there closed, relying upon having shewn title out [143]*143of "White, anterior to the execution of his deed to Fields.
Plaintiffs below then, in rebuttal, introduced Benedict White, the State’s graqtee, who testified that he had never made a deed for the land in dispute to Huff. That the deed in evidence from him to Huff was a forgery. But he further testified that the deed from himself to Fields, put in evidence by plaintiff, was made in consideration of money won from him at a game of cards, by Fields, when he was in a state of intoxication. It may be well, in this connection, to state, that this -witness, (having been made competent by a release), had been examined, by commission and interrogatories, in this case, two or three times previously, and had once before, on a former trial of the same case, been personally sworn and examined as a witness in open Court. His former depositions were read, and witnesses sworn as to his former testimony on the stand, and others, that he had said to them, at different times, things, which, on this occasion, when under examination, he had denied having said to them ; all this for the purpose of impeaching the testimony of White.
Plaintiffs below also put in evidence a deed from Eobert Hardy, former sheriff of Baker county, to John- S. Porter, (their ancestor), for the land in dispute, dated 4th March, 1828.
In this state of the evidence, if the jury believed the statement of White, that his deed to Fields was founded on a gaming consideration, they found contrary to the charge of the Court, unless they predicated their finding upon the sheriff’s deed to Porter. They may have done this, or they may have wholly discredited the testimony of White. If they did discredit White, then the plaintiffs below were left without evidence, to invalidate the deed from White to Huff"; for that was impugned by no other evidence. We think the testimony of White should have been put out of Anew entirely, as being wholly unworthy of credence, because he was self-impeached, and impeached by the testimony of several credible Avitnesses.
Putting, then, his evidence out of the case for a moment, how stood the parties before the jury—plaintiffs below stood [144]*144upon two titles, first, a chain from White through Fields, to their ancestor • secondly, a sheriff’s deed to their ancestor, as purchaser under execution against White. Defendants below showed that White had conveyed this land to Huff/ more than three years anterior to the conveyance to Fields, and more than seven years anterior to the date of the sheriff’s deed. In the absence of any evidence to invalidate the deed to Huff, it establishes the fact that, at the time of White’s conveyance to Fields, the former had no title to the land, and consequently neither the deed from Fields, nor any subsequent one in the same chain, passed any title. The conclusion, therefore, would be that the plaintiffs below failed to deduce title through this chain to themselves. •
But the deed to Huff was-also older than .the sheriff’s deed, and by this test it would appear, that at the time of the sale by the sheriff, there was no title in White, the defendant in execution, and consequently the sheriff could convey no title to the purchaser.
(5.) But the reply is, that the sheriff’s title, by relation, goes back to the time when the lien of the judgment attached. The question then arises, when did that lien attach. Did it attach before the sale to Huff? What is the evidence of it? The execution is not here, the judgment is not here, and in the absence of both, there is no secondary evidence of the date of either. The Court can neither presume that the judgment was in existence anterior to the date of the deed to Huff, nor throw the burthen of proving that it was not upon the plaintiffs in error. This fact is important to the defendants in error, and should have been affirmatively shewn by them on the trial. It may be their misfortune that they cannot prove it, but against that, neither the Court below, nor this Court can relieve them.
In Whatley vs. Newsome, 10th Geo. R., 74, it was held •“ necessary for a party in ejectment, claiming under a sheriff’s, deed, to produce the execution, with the sale under it, and the deed made in pursuance thereto, and prove, either title in the defendant, or possession, subsequent to the rendition of the judgment.”
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[145]*145If it be suggested that there is still another view of this evidence which the jury may have taken, viz: that they may have believed the testimony of White, disproving the deed from himself to Huff, and invalidating that to Fields, and thus leaving the title in White at the time of the sheriff’s sale, whereby the title passed to the ancestor of defendants in error—this is the reply. The evidence of White only so far invalidates the title to Fields, as to prevent its vesting in him and his assigns. Under the state of facts disclosed by him, tlie Act of 1764 intervened, and vested the title in bis next of kin; and here again it became necessary for the defendants in error, to show affirmatively, that the lien of the judgment attached anterior to the vesting of title to the land in White’s next of kin, by operation of the statute.
In any and every view we have been enabled to take of this case, our conviction is, that the verdict is contrary to law, and strongly and decidedly against the weight of evidence. Inasmuch as its effect is to dispossess a party in possession, who is presumed to be rightfully so, until the contrary is made to appear, we think the Court below erred in overruling the motion for a new trial, and, therefore, reverse the judgment, and order that a new trial be had.
Judgment reversed.