Doe ex dem. Clayton v. Roe , 36 Ga. 321 ( 1867 )

Walker, J.

1. The Judge instructed the jury “that a decree is evidence of the recitals therein between the parties thereto as though they were contained in a deed, and binding on the parties in the same way; and when relied on as a link in a chain of title, it must be considered as though it were a deed.” We see no error in this; it is substantially what is contained in Sec. 4119 of the Code. As there was no evidence showing any title in Rugg, either by possession or otherwise, we do not see that it was very material whether the record of the case of Bishop & Parsons vs. Rugg’s administrator, was admitted or rejected.

2. The Court granted a new trial, on the ground that he omitted to charge what constitutes color of title and adverse possession under the act of 1852. Inasmuch as the Judge thought there should be a.new trial, and we see no principle of law violated in so doing, and more especially as the testimony leaves some important points in doubt, which can be made clear on a new trial, we are not disposed to control the discretion as exercised in this case.

There are several points which need elucidation. The paper title is shown to be in Tift, and yet both sides attempt to derive title from Clayton. What interest in the premises he ever had does not appear. No deed is shown conveying titlé to him, nor does it appear from the record that he ever was in possession of the lot. We have already alluded to the fact that Rugg is not shown to have had any title at any time, and still it seems that stress was laid upon the record, introduced by plaintiff, of the case of Bishop & Parsons vs. Rugg’s administrator. The deed made by the sheriff at the sale, in July, 1842, was made to Tift and not to Rugg. We do not see what the doctrine of possession under claim of right had to do with'the case, because it appears that all who claimed the lot showed color of title.

It is uncertain in what character “ Swinney went into possession of the lot directly after the great fire in 1849 or 1850.” It was said in argument that at the time of the trial he was intoxicated, and therefore was not introduced as a witness. By Swinney’s agreement of January, 1851, he was the plaintiff’s tenant; by his agreement in June, 1851, he recites that he was the tenant of defendant in 1850, and agreed so to continue. If in law he was the tenant of plaintiff in January, 1851, he could not by an attornment in June thereafter defeat the plaintiff’s possession. Possibly he went into possession originally as a mere “squatter,” and if so, his possession would be in subordination to the title of the true owner — Stamper vs. Griffin, 20th Ga. R., 234. Perhaps he went into possession as the tenant of Jackson, as he recites in the agreement of June, 1851; if so, then his subsequent attornment to Bishop & Parsons, in January, 1851, would not change the possession from Jackson to Bishop <& Parsons. These suggestions are made for the purpose of showing the uncertainties hanging about the merits of this case, and as reasons why we should allow the re-hearing granted by the Court below. The testimony to remove the most of these doubts is attainable, and we hope will be produced on another trial. We presume the whole facts of the case, as they appeared in the Court below, are not embraced in the record, and that the omission of facts in the case does injustice both to the Court and the counsel. From the points made in the motion for a new trial, and the charges which the Judge certifies he gave, there must have been many facts before the Court below which do not appear in this record. Upon no other hypothesis would the conduct of either the Court or counsel be explicable. We affirm the judgment granting a new trial.

Judgment affirmed.