Denham v. Holeman

By the Court. Lumpicin, J. delivering the opinion. This writ of error is prosecuted to reverse the judgment of the Court below, refusing to grant a new trial in this case. [1.] It is' complained in the first place, that the Court erred in allowing they?, fas. to go in evidence under which the land was sold, for the reason that the entries on the executions showed that they were satisfied, before the land was levied on. The facts upon which this objection is founded, are these: — 190 — Twenty-seven head of sheep had been levied on, and the levy dismissed by order of the plaintiff. Whatever effect this may have had, if any, in a contest between a security and the creditor, it does not apply in an issue like this, between the purchaser and the defendant in ejectment. The second ground is abandoned. [2] As to this assignment, while it is not true that the Reporter puts the head notes to the cases; it is true, that the head note is not law, except so far as it is warranted by the judgment of the Court upon the facts of the case. We must say however, that the head note in the case cited, to-wit : Byrne vs. Lowry, 14 Ga. Rep. 27, was fully justified by the case. [3.] The next seven exceptions may all be considered and disposed of together. And they bring up the law of this case arising upon the proof. It is conceded, that the defendant never went into the actual possession of the premises in dispute, until about Christmas 1849. To make his statutory title available for his protection, the adverse possession should have commenced as early as February, 1849; this action of ejectment having been brought in February 1856. Now, the testimony is, that for several years, the defendant residing some miles off, did at intervals go upon the land, cutting down trees, deadening timber and fencing in a cowpen, which had fallen down. At what time he began to build the house which he subsequently occupied, does not affirmatively appear. [4.] It is further in evidence, that in 1849, Mr. Wheeler rented a small field of a Mrs. Driver, which took in the corners of four adjoining tracts of land: and in this field was included about a quarter of an acre of the land in dispute. Wheeler was not the tenant of Holeman, as assumed in one of the charges of the Court. True, he states, that when he rented the land of Mrs. Driver, he spoke to Holeman, know — 191 — ing him to be a “curious man,” about this small piece of ground, which he claiméd, as he did not wish to get into any trouble with him, still he rented the field of Mrs. Driver, and was her tenant. [5.] Now, the Court held, that these several acts of trespass, repeated at different periods, indicated the intention of the defendant, to return to this land, and authorized the jury in finding, that his possession was continuous as well as adverse. [6.] We do not so hold. To constitute adverse possession, the tenant must either remain permanently upon the land, or else occupy it in such a way, as to leave no doubt on the mind of the true owner, not only who the adverse claimant was, but that it was his purpose to keep him out of his land. [7.] Suppose Denham had taken possession of this land, during the long intervals that it was abandoned by Holeman ? Could he not have done this ? Then he was not ousted of his right of entry by the successive trespasses committed by Holeman. Adverse possession is to be made out by acts which are open, visible, notorious and continuous; and does not depend upon the secret purpose or intention of the intruder ; that he will return at his convenience, sooner or later, and re-occupy the land. Neither is it true as iptimated by the Court, that Hole-man occupied the land in the only way of which it was capable. It was fit for planting and for nothing else. Why could it notjhave been cultivated ? It was neither a gold mine, nor a turpentine forest. As to the possession by Wheeler, of the quarter of an acre; in the first place, he did not hold as the tenant of Hole-man. His' possession therefore could not be reckoned to Holeman’s account. Besides, in the second place, how could the inclosure of a quarter of an acre of this land, at one corner, in a field which took in a portion of three other tracts, give notice to the owner, that his lot ef land was in jeopardy ? He may not have thought that any of his land — 192 — was inclosed in this field. In this case, the field drew after it the few roods and not the occupancy of the few roods, the whole lot. [8.] As to the charge respecting positive and negative testimony, no general rule can be laid down respecting it. It depends upon a variety of circumstances, such as the opportunity of the witnesses for hearing, the attention being directed to the matter, &c. I say to-morrow, — I expressed such and such views, in delivering this opinion this morning. The crowded bar, who listened to it, testify in a body, that they did not so hear and understand me. Engaged in listening intently as they are, who shall be believed ? It would be quite different by and by, when they separate into groups over the Court-room. If I should swear that an attorney who is addressing the Court, and to whom I am listening, said so and so, and the same careless auditors were to testify that they did not hear him. If the neighbors living around this land swear, that Holeman did not occupy it, it is just as good as the evidence of others, that he did. For the question of notorious possession, depends upon facts capable of being equally well known to each set of witnesses. [9.] We think the Supreme Court of the United States gave the correct exposition of the Term, “beyond seas,” in 3 Wheaton 541, and that the decision in 9 Sergeant & Rawle, was upon different words. [10.] But is the Act of 1817, constitutional? Judge Alien held, that it was. Mr. Smith, the counsel of Mr. Den-ham, assails it upon the ground, that the body of the Act does not correspond with its title. Mr. McCay, the attorney of Holeman, not being able satisfactorily to reconcile this supposed repugnance, denies, that this or any other Court has the power to declare an Act of the Legislature unconstitutional. This has ceased to be an open question in the Courts of this country. It underwent a thorough discussion immediately after the establishment of the State governments in — 193 — every State of the Union; and never received the sanction . of a single judicial tribunal in the United States ; see Beall and others against Beall, 8 Ga. Rep. 210; and has long since ceased to be agitated any where else, except in Georgia^ where nothing it seems is ever to be considered as settled. Even the Legislature itself, long before the organization of this Court, instead of resisting this right, as assumed to be exercised by the Courts, did not hesitate to re-enact the law of claim and other statutes, so as to make them conform to this constitutional requirement. We deprecate such discussions. They consume time which might be much more profitably employed. Instead of wasting strength upon these radical doctrines, which have become threadbare, let us rather address ourselves to the law points, in cases, which must control the judgment of the Court. Such is the uniform habit and praiseworthy example of the most successful practitioners at the bar. But notwithstanding the elaborate argumentation bestowed upon this point; is there in fact any antagonism between the title and the body of the Act of 1817 ? We think not? The title is in these words: “An Act amendatory to and explanatory of the statute of limitations in this State, passed the 7th of December, 1805, so far as it regards idiots, lunatics and infants.” Cobb 567. Now, the first section of the statute directs how it shall be construed, so as to favor idiots, lunatics and infants. The second section which it is insisted is unconstitutional, because not embraced in the title, simply provides, that no privileges shall be extended to nonresident plaintiifs, beyond those enjoyed by our own people. And this is the whole body of the Act. Let us now read the title as it should be read, for the purpose of ascertaining its true meaning: “An Act amendatory to the statute of 1805, and explanatory of that Act, so far as it relates to idiots^ lunatics and infants.” It will thus readily appear that the conformity is complete. The first section explanatory to the extent stated in the title, and the second section amendatory. — 194 — It is suggested by Mr. Prince the compiler, that the Act of 1805, is repealed by the Act of 1806; and was therefore not in force, as the statute of limitations in this State in 1817, and consequently could not have been the subject of amendment, The provisions of the Act of 1817, however, he 'admits, are equally applicable to the limitation Acts, which were then in force. I am not entirely convinced, that this annotation is correct. The third section of the Act of 1806, revives to be sure, all Acts and parts of Acts which militate against it. But as remarked before, there being nothing in the Act of 1805 militating against the provisions we are considering, they may be permitted to stand even under the Act of 1817. This point at any rate is not in the case. [11.] The only other ground of alleged error is, that a set of interrogatories were tendered and read as Livingston’s, whereas they were the depositions of Robertson, Why did not plaintiff’s counsel examine them when offered to him ? It is conceded that this was a mere mistake, noticed by neither party, until after the trial; and nobody was hurt by the misnomer. There is nothing in the objection. Judgment reversed.