By the Court
Lyon, J.,
delivering the opinion.
This was an action of ejectment for the recovery of lot of land No. 130, in the 11th district of Walker county, by John Doe, on the several demises of Thomas W. McGee, Dorcas McGee, Henry H. McGee and Emory Hancock, against Richard Roc, casual ejector, and William C. Guthry and William Powell, tenants in possession. On the trial, the plaintiff put in evidence the plat and grant from the State of Georgia to Thomas W. McGee, dated 1st July, 1843, for the lot in question. Then proved by Josiah Lee and Sarah Lee, the death of Thomas W. McGee, in 1847, without children, and leaving his wife, Dorcas McGee, his only heir-at-law surviving. A deed from Dorcas McGee to Henry H. McGee, dated 10th February, 1855. A deed from Henry PI. McGee to Emory Hancock, dated 3d October’, 1858, proved defendants, Guthry and Powell, in possession of the land at the commencement of the suit, and closed. The suit was commenced 2d November, 1858.
The defense rests upon two propositions. 1. That the defendant had been in possession of the lot more than seven years anterior to the commencement of the suit, claiming the same adversely under a colorable title derived from . one Thomas J. Asher; that is, that they had a statutory title to the lot. 2. That the plaintiffs were not entitled to recover because of the existence of an outstanding title better than, and |iaramount to, that of the plaintiff, in one Hardy C. Tatem. And as the questions that arose on these propositions are entirely independent, I shall consider them separately.
[312]*312As to the statutory title, the defendants claim that one Stansell, under whom they hold, went into the possession of the lot some time in the year 1851, previous to the first day of November of that year, under color of title, and that he and they have been continuously in the possession of the lot adversely for more than seven years anterior to the commencement of the suit. In support of this position defendant put in evidence a bond for title from one Thomas J. Asher to the said Stansell, dated 28th November, 1850; a deed from Asher to Stansell for same lot dated 29th September, 1857; and a deed from Stansell to the defendants for the lot dated in October, 1857; also, a number of witnesses as to the possession, some of whom testified that Stansell took possession of the lot in the Summer or Fall of 1851, and previously to 1st November of that year; others again, that actual possession was not taken until after that time. This is about the substance of the testimony on both sides, as to this question.
The only point made on this branch of the defense grows out of the charge of the Court.
The Court charged the jury, “that if Stansell took possession of a portion of the lot in good faith under his bond for titles, and was using it as his own, and cultivating it as his own, making such improvement as he conveniently could on it, this would make his possession adverse. If, on the contrary, he was merely endeavoring to take a secret or clandestine possession of the land, and the possession was not open and notorious, then the taking of a small portion would not be adverse. If you find the seven years adverse possession in favor of defendant, you should render a verdict in their favor.” .The objection to this charge is, that it is too general and indefinite; there is no explanation to the jury, the seven years possession should have anterior to the-commencement of the suit, or that it must have been continuous. The Court, instead of the charge given, should have charged the jury, that if Stansell went into the actual possession of any part of the lot in controversy under the bond for titles from Asher, and he, together with defendants, they holding [313]*313under him, remained in the actual, open and notorious possession of the lot continuously, uninterruptedly and adversely for the space of seven years previously to the commencement of the suit, then the plaintiff could not recover.
There was an objection to the admission of the bond from T. J. Asher, as evidence, but for what reason does not appear, and as the point was not insisted upon in the argument, we only notice the point to say, that there was no error in this ruling—the bond was admissible for the purposes for which it was offered, as color of title.
As to the other grounds of defense, the defendants proposed to put in evidence a bond for titles to this lot, from Henry H. McGee, one of the plaintiff’s lessors, to Hardy C. Tatum, dated 9th January, 1851, together with an acknowledgment by Hardy C. Tatum, of the same , date, to Henry H. McGee, reciting the receipt of this bond for titles, and in which Tatum agrees, that if anything should take place to-put it out of the power of said McGee to procure titles to said lot of land, that McGee was to pay him, Tatum, sixty dollars in lieu thereof, in balance of the price of the cream colored horse. The bond for titles stipulated that titles were to be made within twelve months. This testimony was objected to by plaintiff, which objection was overruled, and the papers put in evidence. The .objection rests on the ground that the execution of the papers was not proven.
As the receipt signed by Tatum was produced by the plaintiff upon notice, it is claimed that this rendered proof of its execution unnecessary, and as it recites the bond, it is insisted that that made any proof of its execution unnecessary.
It is a general principle, that when a party to a suit, in pursuance of a notice, produces an instrument to which he is a party, and under which he claims a beneficial interest, it will not be necessary that the other, party should call an attesting witness to prove the execution. But this rule does not authorize a party to call for the production of, and to put in, evidence a paper that has of itself no connection with, or relevancy to, the issue, like the receipt from Tatum to McGee, for the sole purpose of laying a foundation to get in evidence, [314]*314without proof of execution, another paper that is pertinent to the issue. This was a sufficient reason to have excluded these papers from the operation of the above rule, on which the Court below evidently allowed them to go, in evidence, without proof of execution. In addition to this, there is another reason why this rule could not obtain in this case. Henry H. McGee, it is true, was a party to this suit, and he may possibly have been entitled to, or claimed, a beneficial interest in the receipt from Tatum to himself, but there were other parties to this suit, whose interest was proposed to be affected by this evidence, that were no parties to the receipt of Tatum, and in no wise beneficially interested therein. • Thus Emory Hancock was a party to the suit. He was the plaintiff’s last lessor, and down to whom, through Plenry McGee, the title was carried. He was the real party plaintiff, for whose benefit the suit was brought and prosecuted. He had no beneficial interest in that receipt, was no party thereto, and the bond for titles was offered in evidence to defeat his title. Pie had a right, therefore, to call for proof of the actual execution of the bond, although the receipt reciting such a bond, and of cotemporancous date, was produced upon notice.'
These papers being in evidence, the Court charged the jury thereon, that if “Tatum did pay for the land at the time, 9th January, 1851, and took McGee’s (Plenry H.) bond for title, this would constitute a legal title, and protect these defendants against a recovery in this case, even though they do not hold under Tatum.
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By the Court
Lyon, J.,
delivering the opinion.
This was an action of ejectment for the recovery of lot of land No. 130, in the 11th district of Walker county, by John Doe, on the several demises of Thomas W. McGee, Dorcas McGee, Henry H. McGee and Emory Hancock, against Richard Roc, casual ejector, and William C. Guthry and William Powell, tenants in possession. On the trial, the plaintiff put in evidence the plat and grant from the State of Georgia to Thomas W. McGee, dated 1st July, 1843, for the lot in question. Then proved by Josiah Lee and Sarah Lee, the death of Thomas W. McGee, in 1847, without children, and leaving his wife, Dorcas McGee, his only heir-at-law surviving. A deed from Dorcas McGee to Henry H. McGee, dated 10th February, 1855. A deed from Henry PI. McGee to Emory Hancock, dated 3d October’, 1858, proved defendants, Guthry and Powell, in possession of the land at the commencement of the suit, and closed. The suit was commenced 2d November, 1858.
The defense rests upon two propositions. 1. That the defendant had been in possession of the lot more than seven years anterior to the commencement of the suit, claiming the same adversely under a colorable title derived from . one Thomas J. Asher; that is, that they had a statutory title to the lot. 2. That the plaintiffs were not entitled to recover because of the existence of an outstanding title better than, and |iaramount to, that of the plaintiff, in one Hardy C. Tatem. And as the questions that arose on these propositions are entirely independent, I shall consider them separately.
[312]*312As to the statutory title, the defendants claim that one Stansell, under whom they hold, went into the possession of the lot some time in the year 1851, previous to the first day of November of that year, under color of title, and that he and they have been continuously in the possession of the lot adversely for more than seven years anterior to the commencement of the suit. In support of this position defendant put in evidence a bond for title from one Thomas J. Asher to the said Stansell, dated 28th November, 1850; a deed from Asher to Stansell for same lot dated 29th September, 1857; and a deed from Stansell to the defendants for the lot dated in October, 1857; also, a number of witnesses as to the possession, some of whom testified that Stansell took possession of the lot in the Summer or Fall of 1851, and previously to 1st November of that year; others again, that actual possession was not taken until after that time. This is about the substance of the testimony on both sides, as to this question.
The only point made on this branch of the defense grows out of the charge of the Court.
The Court charged the jury, “that if Stansell took possession of a portion of the lot in good faith under his bond for titles, and was using it as his own, and cultivating it as his own, making such improvement as he conveniently could on it, this would make his possession adverse. If, on the contrary, he was merely endeavoring to take a secret or clandestine possession of the land, and the possession was not open and notorious, then the taking of a small portion would not be adverse. If you find the seven years adverse possession in favor of defendant, you should render a verdict in their favor.” .The objection to this charge is, that it is too general and indefinite; there is no explanation to the jury, the seven years possession should have anterior to the-commencement of the suit, or that it must have been continuous. The Court, instead of the charge given, should have charged the jury, that if Stansell went into the actual possession of any part of the lot in controversy under the bond for titles from Asher, and he, together with defendants, they holding [313]*313under him, remained in the actual, open and notorious possession of the lot continuously, uninterruptedly and adversely for the space of seven years previously to the commencement of the suit, then the plaintiff could not recover.
There was an objection to the admission of the bond from T. J. Asher, as evidence, but for what reason does not appear, and as the point was not insisted upon in the argument, we only notice the point to say, that there was no error in this ruling—the bond was admissible for the purposes for which it was offered, as color of title.
As to the other grounds of defense, the defendants proposed to put in evidence a bond for titles to this lot, from Henry H. McGee, one of the plaintiff’s lessors, to Hardy C. Tatum, dated 9th January, 1851, together with an acknowledgment by Hardy C. Tatum, of the same , date, to Henry H. McGee, reciting the receipt of this bond for titles, and in which Tatum agrees, that if anything should take place to-put it out of the power of said McGee to procure titles to said lot of land, that McGee was to pay him, Tatum, sixty dollars in lieu thereof, in balance of the price of the cream colored horse. The bond for titles stipulated that titles were to be made within twelve months. This testimony was objected to by plaintiff, which objection was overruled, and the papers put in evidence. The .objection rests on the ground that the execution of the papers was not proven.
As the receipt signed by Tatum was produced by the plaintiff upon notice, it is claimed that this rendered proof of its execution unnecessary, and as it recites the bond, it is insisted that that made any proof of its execution unnecessary.
It is a general principle, that when a party to a suit, in pursuance of a notice, produces an instrument to which he is a party, and under which he claims a beneficial interest, it will not be necessary that the other, party should call an attesting witness to prove the execution. But this rule does not authorize a party to call for the production of, and to put in, evidence a paper that has of itself no connection with, or relevancy to, the issue, like the receipt from Tatum to McGee, for the sole purpose of laying a foundation to get in evidence, [314]*314without proof of execution, another paper that is pertinent to the issue. This was a sufficient reason to have excluded these papers from the operation of the above rule, on which the Court below evidently allowed them to go, in evidence, without proof of execution. In addition to this, there is another reason why this rule could not obtain in this case. Henry H. McGee, it is true, was a party to this suit, and he may possibly have been entitled to, or claimed, a beneficial interest in the receipt from Tatum to himself, but there were other parties to this suit, whose interest was proposed to be affected by this evidence, that were no parties to the receipt of Tatum, and in no wise beneficially interested therein. • Thus Emory Hancock was a party to the suit. He was the plaintiff’s last lessor, and down to whom, through Plenry McGee, the title was carried. He was the real party plaintiff, for whose benefit the suit was brought and prosecuted. He had no beneficial interest in that receipt, was no party thereto, and the bond for titles was offered in evidence to defeat his title. Pie had a right, therefore, to call for proof of the actual execution of the bond, although the receipt reciting such a bond, and of cotemporancous date, was produced upon notice.'
These papers being in evidence, the Court charged the jury thereon, that if “Tatum did pay for the land at the time, 9th January, 1851, and took McGee’s (Plenry H.) bond for title, this would constitute a legal title, and protect these defendants against a recovery in this case, even though they do not hold under Tatum. It will be sufficient if the title ■was not in the plaintiff at the commencement of this suit. Plenry PI. McGee sold to Tatum, 9th January, 1851. The papers show that he did not get the deed from Dorcas McGee until afterwards, say 10th January, 1855, but when Dorcas McGee made the deed to H. H. McGee, if PI. H. McGee had sold it to Tatum, and received pay for it, the title thus conveyed inured to the benefit of Tatum, and in law passed the title to Tatum; and under this view of the case, Henry H. McGee would have no title to conve3r to Hancock, or any one else but Tatum. If, however, you are not [315]*315satisfied, from the evidence, that Tatum paid for the land, then defendants would not be protected under Tatum’s title. If, however, he did pay for it, defendants would be protected by this title. Defendants being in adverse possession at the time Hancock received his deed from McGee, that deed as against defendants is void, and therefore no question arises as to whether Hancock had notice of Tatum’s title or not. No recovery can be had in Hancock’s name as admitted by Hancock’s counsel.”
"Whether the important principles, stated by the Court in the charge, are sound rules of law, it is not necessary for the Court to consider, neither do we pass upon them, (speaking for myself alone, however, I must say, that I cannot assent to any one of the propositions’ therein stated as being the law,) but conceding, for the determination of this case, that the legal propositions stated are true, still the charge is erroneous in their application to the facts. The Court states that the deed from Henry H. McGee to Emory Hancock having been made adversely to the possession, is void on that account, and no recovery can be had in his name; neither could a recovery be had in the name of Henry H. McGee, because there is a legal title shown out of him in Hardy C. Tatum. Now, it must be remembered, that the title of Tatum and the defendants, arc as independent of each other as that of the plaintiffs’ and defendants’. There is no connection whatever between them. The defendants do not claim under Tatum, or through him. He is not in possession, but the possession of defendants is as adverse to him as to the plaintiffs. The defendant found this title, or claim of title, outstanding, and laid hold of it to repel a recovery by the plaintiffs. The possession of the defendants being out of the way, the deed from Henry H. McGee to Hancock could not be void as against Tatum, unless made with notice of his title or equitable interest in the lot. But the defendants being in possession, McGee’s deed is void, in consequence of that possession, as^ against the defendants, as the Court below states. Now, if that is true, the deed from Dorcas McGee to Henry H. McGee, which was equally adverse to the possession, would [316]*316also be void, and for the same reason, leaving the title still in her, and never reaching either to Henry H. McGee or Tatum, so as to constitute an outstanding title to prevent a recovery in the demise in the declaration from Dorcas McGee. Hence the charge of the Court was erroneous.
Let the judgment be reversed.