Eaton v. Freeman

Bleckley, Justice. 1. As to the sufficiency of the attestation clause with the word “delivered” omitted, compare 1L Ga., 636; 17 lb., 62; 19 Ib., S. We need not rule upon the admissibility of the deed as the result of its being recorded, for there was evidence, as we understand the record, which proved the hand-writing of the maker and of both the subscribing witnesses, and that all three were dead; and the deed came from the custody of the vendee. This evidence established the execution of the instrument, without reference to whether it was duly recorded or not. 2. To justify the exclusion of the copy deed found in the record of deeds, even as color of title, the record having been made upon insufficient probate or attestation, we need only refer to 58 Ga., 129. There was proof of the loss of an original deed, but no evidence of its execution, or that the copy tendered was a copy of it, except such verity as the record imported, and that was none at all, inasmuch as the record was unauthorized. 3. We need not scrutinize the charge of the court, as there was not (after the exclusion of the copy deed) enough evidence that the defendant had written evidence of title, to make the seven years’ prescriptive term applicable to his case, and his possession had not continued long enough to make the twenty years’ term applicable. There was no error in declining to charge as requested. If the plaintiff had prior possession he could recover on that, whether the defendant, as he contended, was a squatter, or whether, as the plaintiff contended, he derived his possession from the plaintiff on a contract which he failed to comply with, and after failing, set up a revolt and undertook the hold adversely. The Code, §3366, is express, where there is mere entry, without right; and that is the case of a squatter. [539] Of course, the case of a superior and his subordinate, the possession of the latter being a derived one, is still stronger’. Cited by plaintiff in error, Code, §§2690, 2693, 2683 ; 27 Ga., 507. By defendant in error, 17 Ga., 303, 607: 12 lb., 450; 59 Ib., 507. Judgment affirmed.