Ryals v. Wilson , 152 Ga. 757 ( 1922 )

Gilbert, J.

1. The court erred in rejecting the deed from Turman, administrator of the estate of Henry Bourne, to S. S. Mann. The Civil Code (1910), § 4030 declares: “The recital of a compliance with legal provisions in the administrator’s deed shall be prima facie evidence of the facts.” This provision was contained in the Code of 1861, § 2520, and was the law of this state prior to the judgment granted in this case by the ordinary. Clements v. Henderson, 4 Ga. 148 (3), 154 (48 Am. D. 216). The administrator’s deed does not in terms recite that an appi ication to sell was filed, but it does not negative the fact. It does recite that “ the notice required by law has been given,” and, in the absence of proof to the contrary, the ordinary will be presumed to have complied with the law. This judgment authorizing the sale of the land is more than sixty years old. “ The presumptions in favor of the regularity of a. judgment increase with the lapse of years. It has been said that almost any reasonable presumption of fact will be conclusively indulged in order to sustain rights asserted under a decree which is twenty years old. To sustain an ancient judgment time may authorize the presumption of an extraneous fact which the record does not contradict, and which it was not indispensable to the validity of the judgment that the record should exhibit.” Copelan v. Kimbrough, 149 Ga. 683, 686 692 (102 S. E. 162). Furthermore, at the time the order was granted by the ordinary of Elbert County, authorizing the sale of the land of the estate lying in Decatur County, the existing law provided that such lands be sold “ at the place of the public sales in the county where such real estate may lie.” Acts of 1826, p. 98. This has already been noted by this court in the ease of Patterson v. Lemon, 50 Ga. 231 (2), 236. It should be noted that in the opinion on page 236 by inadvertence the act of the General Assembly was erroneously referred to as the act of 1816, when it should have been the act of 1826, which was an act amending the act of 1816.

2. All other deeds in the chain of title, except the grant from the State, offered by the plaintiff were rejected by the court, on the ground that no possession was shown in the grantor and because the deeds were irrelevant. The rejection of these deeds requires a reversal of the judgment granting a nonsuit. Though one objection was on the ground that the deed'was irrelevant, we will assume that the court deemed all of the deeds inadmissible on the ground that no possession of the land was shown by the plaintiff or by any of the grantors named in the rejected deeds. “It is well established that if the plaintiff in an action of ejectment or in the nature thereof relies on a record or paper title, he must show a regular chain of title from the government, or from some grantor in possession, or from a common source from which each of the litigants claims. No length of chain or paper title which does not reach the sovereignty of the soil is sufficient in itself to constitute prima facie evidence of title.” 9 B. C. L. 843, § 15, and authorities cited in the footnote. In this case the plaintiff offered in evidence a complete chain of title, beginning with a grant from the State down to the plaintiff. The Civil Code (1910), § 3798, provides as follows: “The title to all lands in this State orginates in grants from the government; and, since its independence, from the State.” When a grant from the State is introduced, no proof of possession is required. It is when the chain of title is not connected with a grant from the State that possession in one of the grantors in the chain must be shown. Dodge v. Irvington Land Co., 158 Ala. 91 (48 So. 383, 22 L. R. A. (N. S.) 1100, and annotations); Krause v. Nolte, 217 Ill. 298 (75 N. E. 362, 3 Ann. Cas. 1061); Cottrell v. Pickering, 32 Utah, 62 (88 Pac. 696, 10 L. R. A. (N. S.) 404 and annotations). Section 5586 of the Civil Code, which declares: “A plaintiff in ejectment may recover the premises in dispute, upon his prior possession alone, against one who subsequently acquires possession of the land by mere entry, and without any lawful right whatever,” has no application to this case. In this case the plaintiff relies, not upon a bare possession, but upon a complete chain of paper title deraigned from the State of Georgia.

The briefs of counsel for defendant in error mention other reasons why the deeds were inadmissible, such as that the deeds were defective in execution, were not recorded, and the like. We cannot consider the reasons stated in the brief of counsel which do not appear in the record in the case. The bill of exceptions contains the only statement of the matter which we can consider. There it is stated in regard to each deed in question that plaintiff offered in evidence deed from a named grantor to a named grantee, “ convejdng ” the land in question. Accepting this verification as the truth, the deeds which were offered by the plaintiff and rejected by the court had all requisites of valid deeds, and did in fact convey* the land in question each from a predecessor in title to a subsequent predecessor in title.

Judgment reversed.

All the Justices concur.