Doe ex dem. Simmons v. Roe

25 Ga. 178

• Court: Supreme Court of Georgia
• Decided: March 15, 1858
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

The Act of 1802, “supplementary to the Judiciary Act,” says: “The Judges of the Superior Courts shall not, in any case whatever, withhold any grant, deed, or other document, from the jury, under which any party in a cause may claim title, except such evidence of title as may be barred by the Act of limitations.” Pr. Dig. 210.

[1.] This Act, we think, made it the duty of the Court to let the deed of Lacey J. Simmons go to the jury. There is but one way open to the Court, in cases of this sort: to admit the deed, and charge against it. And that has been the way usually taken, when the Act has been relied on for the introduction of irrelevant deeds or documents. If the charge is disregarded, a new trial wihbe the right of the losing party, almost as a matter of course. Recourse to that Act is a sure thing, in practice. Still, the Act is a law, and every law must be obeyed; an appeal^ to this Act, therefore, must be respected.

Although, there the grant was to Larey J. Simmons, and the deed was not from him, but from Lacey J. Simmons, yet the deed, we think, was, under this Act, admissible.

Consequently, we must think, that the Court erred in excluding the deed.

The bond purported to be the act and deed, of both Meredith and Hansell — of Meredith, by the agency of Hansell.

There was no proof that Hansell was authorized to act for Meredith; there was no proof of anything going to show that the bond was the bond of Meredith. It follows, that the bond could not be read as the bond of Meredith, for any purpose.

[2.] The bond was proved to be the bond of Hansell. It shows upon its face, however, that Hansell claimed no title, but admitted the title to be in Meredith. As the bond of Hansell, therefore, it could not serve as a color of title. A writing,'to serve as a color of title, must, at least, not be one in which the writer disclaims title in himself, and admits title in another.

The only purpose of introducing the bond was to prove color of title in the tenant. The bond, therefore, was no more admissible as the bond of Hansell, than it was as the bond of Meredith.

Its admission Avas not claimed under the Act aforesaid, of 1802.

The aid of that Act not being invoked, we think the admission of the bond Avas erroneous.

What has been said, sufficiently disposes of all the questions in the case. •

New trial granted.