Kennedy v. Harden

18 S.E. 542, 92 Ga. 230

• Court: Supreme Court of Georgia
• Decided: June 26, 1893
• Status: Published

Opinion

Bleckley, Chief Justice.

The code, in section 2712, provides that “A registered deed shall be admitted in evidence in any court in this State without further proof, unless the maker of the deed-, or one of his heirs, or the opposite party in the cause, will file an affidavit that the said deed is a forgery, to the best of his knowledge and belief, when the court shall arrest the cause and require an issue to be made and tried as to the genuineness of the alleged deed.” The issue which this provision contemplates can be raised only when there is a deed produced which is registered, and which on account of its registration is admissible in evidence on the trial of the main case. Here no deed was produced which had been registered. The document produced was a certified copy of a deed registered in Forsyth county, the copy being authenticated as one made from the record of deeds in that county. This copy, as we infer from the transcript before us, had been recorded in Gwinnett, the county in which the suit was pending. But there is no statute, and never has been so far as we are aware, authorizing a certified copy taken from the record of deeds in one county to be recorded in another county. The scheme of the recording acts is to record the originals of deeds, not copies of them, though probably in the case of lost or destroyed deeds a duly established copy might be recorded the same as an original. Although the deed recorded in Forsyth county conveyed land lying in that county as well as the tract lying in Gwinnett and now in controversy, the original, even if it had been produced, would not have been admissible in evidence as a registered deed so far as the land in Gwinnett county is concerned, for it had not been recorded in Gwinnett but only in Forsyth, and while this record was good as to the Forsyth lands, it had no efficacy as to the Gwinnett land, for the place for recording deeds is the county in which the land lies. Code, §2705. Where the same deed embraces land in two or more counties, it must be recorded in each of the counties in order to render it admissible in evidence as to all the land it covers. If recorded in one county only, that recording is good as to the land lying therein, but not as to the other lands. It is manifest, we think, that the section of the code above quoted has been misconstrued and misapplied in this proceeding, the facts not being such as to warrant the raising or the trial of a separate issue of forgery.

2. The whole proceeding being outside of the statute under which the issue was formed and tried, it was not error to set aside the verdict; but a new trial- would be idle and fruitless. Therefore direction is given that the affidavit raising the issue be dismissed.

Judgment affirmed, with direction.