Doe ex dem. Hanby v. Roe , 23 Ga. 132 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

Was the Court below right in rejecting the deed made by Starkie Collins, as Sheriff, to William Hardin ?

This deed bore date the 6th of January, 1829. On the 20th day of December, 1828, what is now the county of Randolph was cut off from the county of Lee. Daw. Com. 138. The deed, therefore, was made after the creation of the county of Randolph. The land mentioned in the deed lies in the part of Lee that was created into Randolph. It is recited in the deed that Collins was the Sheriff of Lee county; that as the Sheriff of that county, he had seized and sold the landj and that the sale was made on the first Tuesday in January, 1829, and at the place of public sales in'the county of Lee.

The question is, did Collins, as Sheriff of Lee county, have authority to make the deed ?

We think that he did not.

“It shall not hereafter be lawful for any Sheriff within this State, to levy upon or sell any land which lies out of the county of which he is Sheriff,” says an Act of 1808. Cobb’s Dig. 509.

But the plaintiff offered, it seems, to prove by parol, that Collins was the Sheriff of Randolph county.

Ought such evidence to have been received ? and if it had been received, would it have done the plaintiff any good ?

The evidence would have contradicted the recitals in the deed; they say that Collins was Sheriff of Lee. And even if we admit that they were made by mistake or ignorance of a law, it is questionable whether they are subject to be contradicted in this way.

But suppose they are; suppose it had been shown, that Collins was the Sheriff of Randolph. Then that would have, been shown which would have been equally fatal to the deed, for the deed is a deed made by him, not as Sheriff of Randolph, but, as the Sheriff of Lee; and is a deed made by him, on a sale that took place, at the place of public sales in Lee, and not at any place in Randolph; indeed, at the timé of the sale, Randolph, though cut off, had not been organized as a county, and therefore, could have had no appointed place of public sales.

[1.] Collins, then, had no authority to make the deed, and, consequently, the deed was void. Being void, it was proper, that it should be excluded from the jury.

Whether this sale is one which might be set up, in equity, upon the principal of, acquiscence, or ratification, by all parties, is a question not raised in this case.

[2.] Was the rejection of the bond for titles proper ?

It seems, that A. G. Tucker, the husband of Sarah E. Tucker, the tenant in the ejectment, acquired the possession of the land, from Azariah Doss, one of the lessors of the plaintiff; that he acquired that possession from Doss, by purchasing the land from Doss; that the possession of Sarah E. Tucker, is one which she acquired on the death of A. G. Tucker, her husband, as successor to him ; in short, it seems,that she derives all her rights from Doss, through her husband.

It also seems, that it was a question in the case, whether the purchase by the husband from Doss, had not been can-celled by him and Doss.

Now if the purchase was cancelled by them, the effect was to give Doss the right to retake the possession of the land from Tucker, and from all claiming under him; therefore from Tucker’s wife.

This being so, Doss had the right to show a cancellation of the purchase, if he could. And, to show a cancellation of the purchase, it was of course necessary or at least proper for him to show the contract of purchase, — that is, to show the thing cancelled.

Now, this bond was certainly evidence of a contract of purchase, by which A. G. Tucker purchased the land in question. It was therefore, admissible to the jury; for the question, whether it was evidence of the contract of purchase, — that is the cancelled one, if there was a cancelled one, was a question for the jury.

Again, the bond was in the possession of Doss. How did it get there? By a performance of the condition of it or, by a cancellation the contract of purchase ? If in the former way, then, Tucker got a deed from Doss, when he gave up to Doss, the bond. Now, Mrs. Tucker showed no such deed. From all which, an argument of more or less force, may be drawn, that Doss got possession of the bond in the other way, that is, by a cancellation of the contract of purchase.

We think, then, that the bond, on being proved, was a thing admissible in evidence; and therefore, that the Court erred, in holding it not to be admissible.

We know of no law that makes void the execution of a commission to take testimony, unless, the place of the execution is stated in the return to the commission. It is no doubt true, that the statement of this place in the return, is a thing that may be useful in various ways, yet, we cannot say, that we know of any law that makes such a statement indispensible.

[3.] We think, therefore, that the Court erred in not per- - mitting the interrogatories of William B. Doss to be read.

The grounds of the motion for a new trial, except the two last, are but a repetition of the grounds that have been considered. And it is not necessary to consider the two last, as a new trial is to be granted on the grounds already considered.

Judgment reversed.