King v. Sears

18 S.E. 830, 91 Ga. 577

• Court: Supreme Court of Georgia
• Decided: April 17, 1893
• Status: Published

Opinion

Bleckley, Chief Justice.

The premises sued for are described in the declaration thus: “ a certain tract or parcel of land, situate, lying and being in the city of Brunswick, said county and State, and known or designated on the map or plan of said city, hiade by George R. Baldwin in the year 1837,' as old town lot number twenty-four (24), and which is in the shape of a rectangle, measuring ninety by one hundred and eighty feet, and bounded on the west by Bay street, east by Oglethorpe street, south by lot number twenty-five, and north by lot number twenty-three.” A demise was laid from Sylvester Mumford, and another from Oceanna Sears. Three deeds were introduced by the plaintiff; the first from Bart, as mayor of the city of Brunswick, to Abiel II. Merriam, dated at the top December 31st, 1841, and at the bottom January 31st, 1842, and purporting to be based on a sale for city taxes for the year 1841, the sale being made on the 31st of December in that year. The second was a deed from Henry Merrill and Harriet Merrill to Sylvester Mumford, dated October 27th, 1852. The third was a deed from Sylvester Mumford to Oceanna Sears, dated September 14th, 1888. There was evidence that Merriam died intestate leaving Harriet, his widow, his sole heir, .and that she afterwards intermarried with Henry Merrill. There was also evidence tending to show title in Mumford under the statute of limitations, such title as would be called prescription had it arisen since the adoption o'f the code. And the evidence showed with absolute certainty that Mumford had actual possession, if not for a term long enough to ripen a titl e under the statute of limitations, long enough to enable him or his vendee to recover against a wrong-doer on his prior possession alone if that possession had not been abandoned. Looking to ' the merits of the whole case, we are of opinion that there could be no recovery on the paper title as such ; and that in consequence of errors in the charge of the court, the jury were not constrained to pass upon and decide the questions of fact on which title under the statute of limitations or a right to recover on prior possession alone would depend. The result is that there must be a new trial.

1. The first link in the paper title is the tax deed. No execution for taxes was introduced. The deed stood .alone save as it was supported by an affidavit of the mayor entered thereon, this affidavit being relied upon under the act of December 26th, 1837, applicable to .assessments and sales made for taxes in the city of Brunswick. That act required that “ the mayor shall publish a notice containing a description of the property taxed, the amount of the tax assessed upon it, and the name of the supposed owner, if known to the mayor, re.questing him to pay said taxes within eight weeks from the date of said notice, which notice shall be published .six weeks in the city of Brunswick, and in one newspaper printed in Milledgeville six weeks; and if said tax shall not be paid agreeably to the request in said notice, the mayor shall advertise the property upon which the tax has been assessed, for sale, giving three months notice of the time and place of sale, the amount of tax for which the same is to he sold, and the name of the supposed owner, if known to the mayor, together with a description of the property to be sold, which notice shall be published three months in the city of Brunswick and the same length of time in one newspaper in the city of Savannah and in one newspaper in the city of Milledgeville. . . And the said mayor at the time of executing the conveyance of sale or title to any property sold for taxes, shall make and subscribe thereon his oath or affirmation that all the notices and advertisements required by the act, respecting the property thus conveyed, have been duly and regularly given, which oath or affirmation shall ever after be deemed and taken as conclusive evidence of these facts in all the courts in this-State.” The affidavit which the mayor made aud subscribed on the deed now in question, declared that “ all the notices required by the act of the General Assembly of the State of Georgia, assented to on the 26th of December A. d. 1837, entitled An act to incorporate the town of Brunswick, and to extend its jurisdictional limits,’ &c. &c., so far as respects the property within described, have been duly and regularly given.” This affidavit was not a compliance with the requirement of the act. The mayor did not make and subscribe the oath which the act dictated, but one less comprehensive both in letter and in substance. The notices had not only to be due and regular but they had to he duly and regularly advertised. To give them proper contents and to advertise them once might be treated as giving them duly and regularly, but the mayor had to see and know that the advertising of them was continued, the first notice for six weeks in the city of Brunswick and six weeks in one newspaper printed in Milledgeville, and the second notice for three months in the city of Brunswick and three months in one newspaper in each of the cities of Savannah and Milledgeville. Suppose the mayor had been indicted for falsely swearing that all the advertisements required by the act had been duly and regularly given. It seems plain to us that he could successfully have defended himself against the charge by answering simply that he had not so sworn. He could have said, the act itself makes a distinction between the notices and the advertisements, because it requires the oath to include both and to declare that both were duly and regularly given. The affidavit omits advertisements; — why was that omission made if the mayor intended to do, something different from what the act does, that is, make the. word notices include advertisements as well as notices ? It is possible that advertisments might be construed both as including the notices to be advertised and the prescribed publication of them by advertising; for to affirm that advertisements have been duly and regularly given could, without strain upon the language, he held to mean that they had the prescribed contents and had been published through the prescribed medium and for the length of time required. Be this as it may, it is enough that in prescribing the terms of the oath or affirmation, notices were evidently treated by the legislature as the things to be advertised, and advertisements as the advertising or publication of them. In view of the legal strictness which is observed in manifesting the validity of all sales for municipal taxes where it is sought to divest the owner of his title by means of such sales, we are clear that the defective affidavit before us is no substitute, as matter of evidence, for due proof of a tax.fi. fa., the levy of the same, and of a due observance of all the preliminaries prescribed by the statute under which the sale was made or purports to have been made. This deed, whether with or without the aid of the affidavit, affords no evidence of authority to sell for taxes. •

2. Another infirmity of the deed, treating it as a basis of recovery in the present case, is that it contains nothing showing its application to the premises now in dispute. Nothing but the general and vague description set out in the second head-note appears in the deed to identify its application to any particular jiremises whatever. The deed does not represent that the property was seized as that of any named owner, or that it was in the possession or occupation of any person. In truth there is not the slightest hint or intimation in the whole instrument from which the least aid could be derived in applying the description to its subject-matter, nor was the map or plan referred to i-n the description introduced in evidence. If it had been, the description would apply as well to one lot or parcel on it as to another, so that if, according to it, that part of Brunswick known as Old Town contains more than one lot or parcel, and as appears by the deed from Mumford to Mrs. Sears it evidently does, the uncertainty as to which particular one was sold would remain and be fatal.

3. The ruling made in the third head-note applies to the deed from Henry and Harriet Merrill to Sylvester Mumford. . That deed was admissible as an ancient document without proof of its execution. Its application to the premises in dispute is doubtful on the face of the deed itself, but it purports to convey a town lot in Brunswick of the same number as that sued for. With the requisite aliunde evidence the two lots might be shown to be identical one with the other.

4. The exact terms of the description used in the last mentioned deed are recited in the fourth head-note, and there is no impediment to invoking extrinsic evidence for the purpose of identifying the lot referred to as number twenty-four, and establishing its precise location in the town, or more properly the city of Brunswick.

5. King, the defendant below in the action, was a stranger to the deed from Mumford to Mrs. Sears, and though it was made pending his adverse possession that would not render it invalid, because it was executed after the adoption of the code, which abrogates the old law prohibiting the conveyance of land while held adversely to the maker of the deed. King being a stranger to this deed, and, so far as appears, not holding under either of the parties to it, had no concern with their purpose in making it, though that purpose may have been to enable Mrs. Sears to bring and maintain an action of ejectment against him in the Federal court to recover the premises. An inquiry into that matter might be relevant were the question raised in that court for the purpose of defeating a collusive action brought there as the result of contrivance by a mere colorable conveyance to give that court jurisdiction. But the jurisdiction of the superior court is not dependent upon the citizenship of the plaintiff, but upon the location of the land within the county and upon that alone. The objection to the deed as to its attestation by one witness whose commission as notary public had expired, and who was at the time counsel for the grantee in the deed, and by another witness who was the minor son and engaged in the law office of the first witness, furnished no reason for excluding the deed as evidence. The objection as stated involved in itself a concession that the deed was in fact executed and delivered, and certainly the matter of the objection would not, if established, render the deed inoperative or interfere with its legal effect as a muniment of title, for it would pass title as well without any attesting witness as with two or more, whether either of them was competent to attest it or not. Proper attestation is a requisite to prepare a deed for record, and either probate or official attestation is requisite for the same purpose. But as we understand the objection, the point made was, not that the deed was not in a condition to be recorded, but that it was not valid as a conveyance. Deed good with one attesting witness only. Downs v. Yonge, 17 Ga. 295; Lowe v. Allen, 68 Ga. 225. Same as to mortgage. Gardner v. Moore, 51 Ga. 268. Deed good without auy attesting witness. Johnson v. Jones, 87 Ga. 85. Same as to mortgage. Marable v. Mayer, 78 Ga. 60.

6. We have discovered no conclusive reason why the deed from the Merrills to Mumford would not serve as color of title to the premises in dispute, if as matter of fact the lot described as No. 24 be the same lot as that to which the declaration refers in each of the two demises which it contains. There is evidence that Mumford, by his tenant, had possession up to March, 1862. The tenant himself dates the beginning of this possession in the latter part of 1854 or early in 1855. Another witness dates the beginning one year earlier. Were the jury to accept the recollection of this witness as more reliable than that of the tenant himself, they could easily have found that the possession had continued for seven years before the first suspension of the statute of limitations by legislative act took place, which was December 14th, 1861. If the tenant’s statement is to be preferred as the more reliable, then the statutory title most probably did not ripen ; for while a suspension of the statute of limitations would not count against a possession of land held after the code took effect, it would hold against a possession which terminated before January 1st, 1863, the time when the code went into operation. It was the code which brought in the element of prescription as distinguished from limitation, and under the code prescription, as it has been held, runs though the statute of limitations be suspended. Pollard v. Tait, 38 Ga. 439. While, of course, prescription could be suspended by name, yet, being something merely analogous to but not identical with the statute of limitations, it is not suspended when the latter alone is mentioned in the suspending act. It was contended in the argument that as the jury could have found from the evidence a title by prescription, using the term, for convenience, as we now use it under the code, it mattered not whether a recovery could have been had upon the paper title irrespective of the statute of limitations, or not. But it does matter, for under the charge of the court the jury were enabled to shun the question of prescription altogether. They were left free to find for the plaintiff’ on the paper title, when as matter of law that title was insufficient as a basis of recovery.

7. The same observation applies to another possible ground of recovery. Treating Mrs. Sears as claiming under her deed from Mumford who went into possession under color of title, if he remained for less than seven years before the statute of limitations was suspended, a recovery might or might not be had upon such prior possession alone (coupled with the deed from Mumford to Mrs. Sears), as against King, the defendant, who seems to have entered under a claim of right, but shows neither title nor any lawful right. There being a demise both from Mumford and Mrs. Sears, or rather from each of them, his prior possession alone would be a basis of recovery if he never intended to abandon the premises, but on finding that his tenant had gone out in time of the war, he intended to resume possession, and remained in that mind until he conveyed to Mrs. Sears. The animus revertendi would be matter for inquiry and determination by the jury on all the facts and circumstances of the case, and if they found it existed, they might restore the possession to Mumford or his vendee as against a mere wrong-doer, although Mumford had not shown either paper title or prescriptive title. But the charge of the court did not force the jury to pass on this question any more than it did on the question of prescriptive title. Under that charge the verdict may have been reached irrespective of whether the animus revertendi on the part of Mumford existed or not.

8, 9. The questions of practice involved in the cross-bill of exceptions and ruled upon will be understood from head-notes 8 and 9, read in connection with the official report of the facts. The court erred in overruling the motion for a new trial.

Judgment reversed. On cross-bill, affirmed.