Williams v. Moore & Watkins

68 Ga. 585

• Court: Supreme Court of Georgia
• Decided: February 15, 1882
• Status: Published

Opinion

Crawford, Justice.

Moore & Watkins brought suit in ejectment against William Williams to recover a lot in the city of Brunswick, to which they claimed title.

The facts appear to be that a corporation known as “The Proprietors of the City of Brunswick,” sold the premises in dispute to one James B. Taylor; that in 1872, the said Taylor having died, the lot in question was given in for taxes by one C. S. Schlater, agent for the estate of Taylor ; that the taxes not being paid, a tax ji.fa. was issued, the lot levied on, sold and bought by the plaintiffs ; that Williams being in possession, this suit was brought against him, and the plaintiffs obtained a verdict, which he sought to set aside, but failing, brings the case to this court for the errors alleged to have been committed on the trial.

1. The first error alleged and relied upon is, that the court erred .in admitting in evidence a certified copy of the deed to Taylor without laying the proper foundation therefor.

The 42d rule of the superior court requires that, “ in order to introduce the copy of a deed in evidence, the oath of the party stating his belief of the loss or destruction of the original, and that it is not in his possession, power or custody, «-hall be a sufficient foundation for the introduction of such secondary evidence.”

The parties in this case testify that they never had the original deed ; that it never was in their possession, custody or control; but they say nothing whatsoever as to their belief of its loss or destruction, or that they had made any search for or effort to ascertain whether it was lost or destroyed. Whilst the examination preliminary to the introduction of secondary evidence must be left largelyin the hands of the presiding judge, we think that the rule of court in this case was not strictly complied with, so as to admit the copy deed in evidence. But as the evidence-showed that Jos. B. Taylor resided in the state of New York in his life time, where a subpoena duces tecum would not reach him, and where the parties could only have-made inquiry as to the original deed, and obtained it if’ the'executor chose to deliver it up, we cannot say that the judge so abused his discretion in admitting the copy,, legally recorded in this state, as to justify the grant of a» new trial, especially as this is the only doubtful ruling; made by the judge during the progress of the case.

2. It w.as further insisted, that the deed was improperly recorded because the same had been attested by Jas. B. Grady, a commissioner of deeds for New York, when it should have been by a commissioner of deeds for Georgia. This-attesting witness recites in the body of his certificate that he is “ a commissioner resident in the city of New York,, duly commissioned and qualified by the executive authority, and under the laws of the state of Georgia, to take acknowledgments of deeds,” etc., which is sufficient prima facie to establish the fact of his official power to act as such commissioner, and to attest deeds in the state of New York for lands in Georgia, and this, notwithstanding he signs his name and adds thereto the words, “ a commissioner of deeds for New York.”

We think that, taking the whole paper together, its only meaning and effect is that he was a commissioner of deeds for Georgia in the state of New York, and, therefore, that the record of the deed was not illegal.

3. Another error complained of is the fact that the judge allowed the constable, after proper proof by him, to enter on the fi. fa. nunc pro tunc, no personal property to be found upon which to levy the same. Before this entry \was made, the constable testified that he had made dili-gent search for personal property upon which to levy the execution, but failed to find any. There was no error in allowing this entry to be made under §3498 of the Code, and 55 Ga., 145, nor was it such an amendment of the fi. fa. itself as to vitiate the levy; indeed the amendment did not go to the fi. fa. at all.

4. Another ground of error alleged is that the judge charged the jury as follows: “That if you find from the evidence that Moore and Watkins formed a partnership with the view of defrauding the rights of the defendant in that tax fi. fa., either by preventing a sale for its full value, or for the purpose of reducing the number of bidders for the property, it would be a fraud, but I charge you that it is competent for persons to join their interests in the purchase of property at any sale, whether tax sale or not, provided it is not organized for the purpose of reducing the value of the property, or in some way interfering with the rights of the party whose property was to be sold.”

We see no error in this charge of the court.

5. There are several other assignments of error in the bill of exceptions, but they fall under, and are ruled fully by the case of Doe ex dem; W. F. Williams, adm'r, and vs. Roe, cas. eject., and Richard Young tenant, in 51 Ga., 453.

Judgment affirmed.