Jordan v. Faircloth

14 Ga. 544

• Court: Supreme Court of Georgia
• Decided: January 15, 1854
• Docket: No. 71
• Status: Published

Opinion

By the Oourt.

Lumpkin, J.,

delivering the opinion.

[1.] This is an action of ejectment for lot No. 316, in the 2d district of Baker county. The plaintiff derives title, regu_ larly, from Baugh, the grantee. The defendant deduces his ti. tie from the same source. The defendant offered Baugh to prove that the deed, under which the plaintiff claimed, as having been made by him, was a forgery. He also tendered a release to tbe witness, of his liability over, on account of his warranty. This testimony was objected to, and repelled by the Court, and we think improperly.

The release by Jordan to Baugh, discharged, of course, all the intermediate warranties, and was consequently sufficient to restore him to competency; because it discharged him from all liability.

But, it is argued, that under an old Statute of 1755, it is made penal for the same person to convey the same tract of land twice, without informing the second purchaser. Whether this penal Act is in force, notwithstanding the Code of 1833, professing as it does, to consolidate all existing criminal laws, it is not necessary to determine. Even if the first deed from Baugh is defeated by his testimony, that will not protect the witness for a prosecution for perjury, at the instance of the plaintiff in ejectment, or of any one else. The verdict in ejectment, could not be given in evidence, in his favor. So that, admitting the Provincial Act to be unrepealed, or worn out by desuetude, still, the witness could stand indifferent, being liable, in any event, for the one offence or the other.

But, it is insisted, and was so decided in the Court below, that the subscribing witnesses to the deed from Baugh to the plaintiff, should be first examined by the defendant, before he can attack its genuineness by other proof.

But we apprehend, that this case does not come within the rule of Ellis & Smith, (10 Ga. Rep. 251.) The forged deed, it will be recollected, had already been read in evidence, under the-authentication of its registry. It was not an offer, on the part of the defendant, to prove the deed, but to disprove it by the nominal grantor. It would bo hard, indeed, to require him to resort to witnesses, who, he protests, have no existence; who are either mere men of straAV, or if real persons, whose names, as witnesses have been fabricated.

In analogy to the old ceremony of calling on the persons present, to prove livery of seizin, we still resort to the subscribing witnesses first, to prove its execution. But this rule cannot apply to a forged deed ; and one, too, which the party is not seeking to set up, in order to derive a benefit under, but which he is resisting and endeavoring to defeat.

Let the plaintiff summon these witnesses, if above ground and accessible, to support his title. There are too many of these fictitious titles afloat in the country. I do not pretend to insinuate that this is one of them; and the rules of evidence should not be restricted, to save them from detection and exposure.

Judgment reversed.