Dyson v. Knight

Beck, J. (After stating the facts.) 1. The 4th ground of the motion for a new trial assigns error upon the court’s refusal to exclude the testimony of a witness as to a certain memorandum. Inasmuch as no part of the memorandum referred to was stated by the witness, it would seem that the defendant could not have been hurt by the admission of this testimonybut the evidence itself was immaterial, and should have been excluded upon objection of the defendants’ counsel, based upon that ground. 2. The 6th ground of the motion complains of the admission in evidence of a certified copy of the will of Thomas Dyson, dated June 28, 1865, codicils thereto dated February 9, 1866, “and the appointment and discharge of James E. Dyson as executor, and of Milton C. Smith as administrator de bonis non on the estate of the said Thomas Dyson; the order of the court of ordinary of Thomas count}r, removing and dismissing James E. Dyson as executor, and the order appointing Milton C. Smith as administrator with the will annexed, both dated October 7, 1867, and the order discharging Milton C. Smith as administrator, being dated April 2, 1888, and reciting that said estate of Thomas Dyson has been fully and properly administered; said copy being duly certified by the clerk of the court of ordinary of Thomas county, August 18, 1906, the said will making no reference whatever to the lots of land in controversy.” In offering said documentary evidence, counsel for the defendants made the following statement: “I want to state that I offer this but for one purpose, and that is as evidence of what I stated in the opening of the case, — that this was not an estate partially administered, but an estate which had been fully ■ administered, and for the further purpose of showing that Thomas Dyson, in making his will, apparently made no claim to these lands, made no disposition of them so far as the will shows, and that his administrators, James E. Dyson, who was the first ad [580] ministrator on his estate in Thomas county, and who was succeeded by Milton C. Smith of Thomas county, made no claim to these lands in controversy as belonging to the estate of Thomas Dyson.” Inasmuch as neither the will nor an abstract of the contents of the same is set forth in this, ground of the motion, nor in the brief of the evidence, we are not able to say whether' it should have been admitted or not. The mere fact that the will made no reference to the lots of land in controversy is not necessarily conclusive upon the question of its admissibility in evidence. If the will contained a residuary clause that might have embraced the lots in question, and if it required a sale and a division of the proceeds, might there not arise a presumption that there had been a complete administration of the estate and a distribution according to the scheme set forth in the will? 3. The plaintiff in error objected to the admission of a certain document in the handwriting of A. G. Butts, which purported to be a copy of a deed from Dyson to Stovall, as trustee for Mrs. Sarah C. Butts. The court overruled the óbjection and admitted the testimony. The objection to this evidence was well taken, and should have been sustained. The special objections urged are set forth in the .statement of facts (7th ground of the motion for a new trial). They were based upon familiar principles of law, and the admission of the paper and the application of those principles demanded the exclusion of the evidence. 4. The court also erred in admitting the evidence set forth in the 8th ground of the motion for a new trial. “The execution of a lost deed embracing lands in two counties can not be proved, as to land in one of the counties, wherein the deed wq.s never recorded, by a certified copy from the record of the other county, in which it was duly recorded. And without first proving the execution of an original deed, a copy of the same taken from the records of a county in which the land in controversy is not situate can not be received in evidence.” Bagley v. Kennedy, 94 Ga. 651 (20 S. E. 105). Having ruled that the documents referred to in divisions 3 and 4 of this opinion should have been excluded from evidence, it is unnecessary to deal with the question made in the 5th ground of the motion for-a new trial, which complains of the admission in evidence of a certified copy of the order removing Massilon P. Stovall, as trustee for Mrs. Sarah C. Butts and children, and sub [581] stituting ■ Albert G. Butts in his place as trustee, because, those documents having been excluded from the evidence, the order substituting Albert G. Butts in the place of Massilon P. Stovall as trustee would necessarily be nugatory, so far-as relates to the1 effect of such substitution upon the chain-of title which those documents were offered to establish. 5. As against the plaintiff, the court did not err in giving to the jury the instructions set forth in the last ground of the motion for a new trial. While it was held in the case of Vickery v. Benson, 26 Ga. 682, that “Although one holds another’s lands adversely for seven years, under color of title and.claim of right, yet, if he then abandons the lands, he can not claim the benefit of the statute of limitations,” it has not been decided since the adoption of the code, substituting title by prescription for title acquired by adverse possession under the limitation laws, that the doctrine of abandonment, resulting from the discontinuance of use and occupation, in the absence of facts and circumstances showing a devolution of title, can be invoked against one who acquires a good prescriptive title. And the question as to the applicability •of that doctrine of abandonment, as against one setting up a prescriptive title, is not here decided, as it is not raised by an assignment of error upon that portion of the court’s charge last above referred to. We merely rule that after a good prescriptive title to lands has ripened, the person vested with such title can not be held to have been divested of title, because of abandonment, so long as he continues to perform acts in relation to the lands and title thereto which are inconsistent with the idea of abandonment. Judgment reversed. All the Justices concur.