Sutton v. McLeod

29 Ga. 589

• Court: Supreme Court of Georgia
• Decided: January 15, 1860
• Status: Published

Opinion

— Lumpkin J.

By the Court.

delivering the opinion.

[1.] The preliminary proof submitted to the Court, was sufficient, according to the 51st Common Law Rule of Practice, with which we are not disposed to interfere, to entitle the defendant to introduce the copy grants to Isaac Perry.

[2.] We see no error in the Court’s refusing to charge, as asked by plaintiff’s counsel, that the presumption was, that the ■title to the land in controversy had reverted to the State before -the younger grant issued. There was no proof offered by 'the plaintiff to raise such a presumption, and the. burden was upon him. For any thing that appeared to the contrary Isaac Perry, the original grantee, may have been, living in Emanuel county when this case was tried.

The old'grants bear date in 1795. Had proof been made that the grantee had not been known in that section of the State, from that time down, or for a half century, or any oth.-er Jong series of years, nor his heirs at law or representatives, ■or any one claiming said land as his, the jury would have been justified in presuming that the land had reverted to the 'State before it was re-granted in 1845. For I hold, that every reasonable presumption should be made against these old land titles. The public peace, as well as justice to private rights which have intervened, demand the enforcement of ■this policy to the fullest extent.

We think the verdict of the jury, as originally rendered in ■this case, was sufficient. There was no impropriety, however, in directing it to be amended. In finding for the defendant the premises in dispute, they find that portion of the land covered by both the old and new grants.

We are of the opinion, however, that it was error in the ■Court to refer it to the jury to find that the defendant would ■be protected by his statutory title, provided he had held possession of the land seven years, under his Sheriff’s deeds, ■when there was not a particle of proof to authorize such a verdict. On the contrary, the utmost limit to which the evidence went, wag that he may have occupied the land six years before the action was brought. This then should not have been submitted to the jury as an open question, but they .should have been instructed, as a matter of law, upon the facts' proven and"'undisputed^ feat the defendáni Haá wholly L-.-í o v,";r :’.c,o'p.i.’íi!" ti’íüííj.-i v ’ o \ín 'Tailed'to sustain his statutory; title. . ;

[3.]

If Was' in'sis’ted'by fee cóhns!eí%r fee below, 1 and pláiritiff inQei’rór Here, feat for thé 'Sefenáahfeó'!íá'efékFthe feláiniiif by '''shóiving‘feinparamoimt, 'itte^ he hfiist go: further, anfecbruíecí; h'ifesifí Wife’ feat tit'íe — eqnitaidy aHeagt, if hdt 1 ' ,JI *'-M Kl i

This doctrine, if is trifeplias been'1 again' a!niá''agaíÚl&pplied 'by fhis'Court; -fe ^iaintiffisi,in'eje&tbfení,pW&órláy5£ demise, !iií fee 'ríáfeeWfWrnéJifeáfefeé \yho1ishi'bt'‘^aiffeiphfe:V^Flthe ‘íitigktfen. ‘fifóJf the ¥üfé kas’h'evérfeeéif’eliéfetíéá’fe^defehd'ágamst asahís."; The pó'ssbsfe'iúh bf fe’e déféhdknf is'-a pfet,éctio'h,‘agái • ail Whóbefek lo’dístürí) ít, fetítirfee tíüefbwneí¡; cb liles’to Wfertfeisd'iglít? 'T8 tíimfiie'déíehdáW'is a'ksWeráb^fe'fokriibsne 'profits.'fehfefeis WoiiglV fór fefe'fefehbw thaVfeepártyWu'ing ‘is'ntít feédimé óWnériM’t ttí’áhtíe*té^tefond"ínafen anotlieV. '■ Tkhfs' principle is hoary Wife age'WAWéfeow -■ ?. -■ ■■ ■>-•'i-, c* , ■ ¡1 ' MRifUih „ Vi' IK C-.-.’.'S ■ f ) ■:}'"(? i.'ilU to it reverently.