Doe ex dem. Hester v. Roe

By the Court. Lumpkin, J. delivering the opinion. This was an action of ejectment, to recover lot No. 274 in the 9th district of what was originally Carroll, now Heard county. The plaintiff, Zachariah Hester, introduced a grant from the State to himself; proved the locus and the possession of the defendant at the commencement of the action, and closed his case. The defendant offered in evidence, a Sheriff’s deed to the lot of land, made to Wm. B. W. Dent. This testimony was objected to on the ground, that no judgment or execution against Bell — as whose property the land purported to have been sold — had been shown, or that Bell was in possession at the date of the sale. The Court ruled out the deed as legal title, but allowed it to go to the jury as color of title, and this is the first error complained of. [1.] In Beverly et ul vs. Burke 9 Geo. Rep. 440, this Court held, that the Sheriff’s deed alone, unaccompanied by either the judgment or the fi fa, ivas sufficient to constitute color of title: — that is tobe a starting point from which the statute of limitations might begin to run, provided the purchaser went into possession under it. Wo adhere to that opinion. [2] Nicholas Tompkins was next tendered as a witness, and objected to on the ground of interest. He was the administrator of Giles S. Tompkins, deceased, who owned one-third of the land in dispute ; that Coats, the tenant, was put upon the land by Dent, Wood and the witness as administrator; [59] and that as administrator ho had employed counsel, and was responsible for their fees. The Court held, that it did not affirmatively appear, that Tompkins was incompetent by reason of his interest; and therefore he was permitted to testify, and we see no error in the ruling. A naked trustee is excluded when a party to the record, because liable for cost, otherwise, the burden is upon the objector to demonstrate that he has such a certain and fixed interest, as to disqualify him. He may or may not be liable over, representatively, to Coats, in case of eviction. He is only bound representatively for attorney’s fees. [3.] It only remains to notice the charge requested by plaintiff's counsel, and that given by the Court. The Court was asked to instruct the jury that no judgment or execution having been shown against Bell, that the Sheriff sold, if at all, without authority, and that Dent and others who took possession under the Sheriff’s deed, were trespassers on Bell’s possession, and that they corrld not connect their possession with Bell’s. This charge the Court refused to give, but on the contrary, instructed the jury, that the possession of Dent and others, might be connected with Bell’s, for the purpose of making out a statutory title. Was the Court right? First, as to the request to charge. If no authority was shown in the Sheriff to sell the land, while it may bo true, as decided in 9th Ga. Eep. that a mere Sheriff’s deed may be enough to lay the foundation for the statute to begin to run, still, if the Sheriff had no authority to sell, and such is the legal presumption in the absence of proof, would not those who went into possession under the Sheriff’s deed, bo trespassers, even against the alleged defendant in execution ? The Sheriff’s deed unaccompanied by a judgment or execution, is no more than the deed,of any other individual, Simpson vs. Downing, 23 Wendell, 316. Bo this as it may, the nature of Bell’s possession being unexplained, that is, it not appearing to have been adverse to that of the true owner, [60] and no authority having been shown in the Sheriff to sell, we are clear, that the possession of Dent and others cannot be connected with that of Bell, so as to oust Hester, and that therefore the charge of the Court, as given, was manifestly erroneous. Judgment reversed.