Doe ex dem. Hollis v. Roe , 36 Ga. 463 ( 1867 )

Walker, J.

1. In an action of ejectment, a registered deed for the premises in dispute, shall be admissible in evidence in any Court in this State without further proof. Code, Sec. 2674. To this rule there is one exception, namely: when the maker of the deed, or one of his heirs, or the opposite party in the cause, will file an affidavit that said deed is a forgery, to the best of his knowledge and belief. In such case, the Court shall arrest the cause and require an issue to be made and tried as to the genuineness of the alleged deed. Ib.

2. This is a cumulative remedy. A party alleging a deed to be a forgery is not obliged to make the affidavit. After the deed has been admitted, he may introduce any competent evidence to impeach it. If .he can successfully attack the deed without making the affidavit, it is his right to do so.

3. If the affidavit be filed, it then becomes the duty of the Court to suspend the case, until the issue as to the genuineness of the alleged deed is tried. In this case the party did not make the affidavit prescribed, but introduced evidence sufficient to satisfy the jury that the deed in controversy was a forgery. There was no error in the Court in, permitting him to do so.

4. It is insisted that the Court erred in refusing to charge the jury that the testimony of witnesses, impeaching the genuineness of the deed, by showing that the alleged maker, at the date of the deed, was at a different place from that at which the deed was made, was of a more unreliable character than direct proof that the deed was not the deed of the maker, or was not in his handwriting, and the failure to do so, when they had the power to make this proof, was a circumstance against the party offering the testimony. A party has the right to select such competent testimony as he may see proper, and if he can, by any legal testimony, establish the truth of his allegations, the jury should not be told that the introduction of such testimony, rather than some other testimony which the opposite party insists would be stronger, is a circumstance against the party. Parties have the right to introduce legal testimony to establish the truth of their .cases. If the evidence be competent, pertinent to the issue to be tried, and makes clear the point in controversy, this is sufficient, and the jury ought not to be told that it is of an unreliable character.

5. There are different circumstances which may impeach a deed. The facts proved in this case satisfied the minds of the jury that the deed in controversy was not genuine. Other facts might, if they exist, have been proved. All that is required is for the party to present competent testimony sufficient to satisfy the minds of the jüry, and his task is done. It is the duty of the Court to see that the testimony introduced is legal, and the jury will decide upon the credibility, force and effect of it. There was testimony in this case sufficient to sustain the verdict.

Judglnent affirmed.