Allen v. Holden

By the Court. Lyon, J., delivering the opinion. Larkin A. Allen commenced an action of ejectment in the Superior Court of Carroll county, for lot of land number three, (3,) in the sixth district of that county, against Lewis Barton, the tenant in possession. Pending-that action, Barton filed a bill in equity against one John Catlett, the drawer of the lot, and Allen, the plaintiff in ejectment, setting up an equitable title to the lot in himself, and enjoining the action at law. This bill was dismissed after it had been answered separately by Catlett and Allen. A new bill was then filed by Matthew J. Holden, under whom Barton held, setting the equitable title as being in him, and not in Barton, against the same persons. [422] On the trial of this latter bill in equity, the complainant offered in evidence the separate answer of Catlett to the first bill, filed by Barton, and the Court, against the objection of counsel for Allen, allowed the same to be read to the jury as evidence against Allen. This decision Avas erroneous. The main issue was between Holden and Allen.. Catlett had no real interest in the suit, except as to the former owner of the lot. Both parties claimed under him, but he, Catlett, neither claimed, nor had, any interest in the land. It is a strict rule that the answer of one defendant shall not be read in evidence against another, not even as to cost, the reason being, that there is no issue between the parties, and there has been no opportunity of cross-examination. Gresley’s Equity Evidence, 29. Cherutt vs. Jones, 6 Madd. Ch. Rep., 268. Jones vs. Tublerville, 2 Ves., 11. The title set up by the complainant is, that Catlett sold the claim, in 1828 or 1829, to Martin Berry, for $35 00, received payment, and made a bond for title; that Martin Berry after-wards sold and conveyed the land by bond to Jesse Berry; that bond, with the one from Catlett to Martin, and that from Martin to Jesse Berry, have been lost; that in 1836, Jesse Berry sold and conveyed the land, by bond, to John Dobson, who afterwards sold and conveyed the land, by assignment of the bond, to the complainant. This bond is exhibited to the bill, from which, it appears that Jesse Berry obligates himself therein, in the sum of one thousand dollars, to make titles to the obligee, Dobson. 2. Complainant offered Jesse Berry as a witness, (his testimony being taken by interrogatories,) to prove the sale by Catlett to Martin Berry, and the one by Martin to himself— the execution and loss of the bond for title. The Court below admitted the same to go to the jury as evidence against the objection of the defendant. The objection to the testimony should have been sustained, as Jesse Berry was clearly interested in the recovery being had by the party calling him, and therefore incompetent; for, if complainant failed to recover, the liability of Jesse Berry on his bond for title would be fixed and certain. [423] 3. The deed' from John Catlett to the defendant, Larkin A. Allen, for the lot in controversy, dated the 14th of November, 1843, executed in presence of one Larkin Allen and A. E. Bond, was admitted to record on the 1st of November, 1844, on the affidavit of Larkin Allen, that he saw John Catlett assign the within deed for the purposes therein mentioned ; also, he assigned the same as a subscribing witness. This deed was improperly admitted to record on this probate, on account of the defectiveness of the probate, in this, that it contained no statement of a delivery of the deed, or of its being signed by the other witness as a subscribing witness. See Rushin vs. Shield and Ball, 11 Ga. Reports, 636. So the Court below ruled, but no point was made on this ruling, as the deed was again recorded on the 9th of September, 1848, on the affidavit of both the subscribing witnesses, containing all the requisites of the law. On this state of facts, as to the record of the deed, the Court below charged the jury, that defendant’s deed not having been regularly recorded, within twelve months from execution, it could not take precedence over complainant’s title, (if he had one,) under the Registry Act. Ve think that this charge states the law on this subject correctly. It is true that the complainant sets up no deed from Catlett, the drawer, under which he held or claimed, but he does set up claim under a sale and purchase from Catlett, the payment of the purchase money, and a bond for title, in order to take precedence over such a title, if there be any such in fact, by a subsequent deed, under the Registry Act, such subsequent deed must be regularly and properly recorded within twelve months. Let the judgment be reversed.