Jowers v. Lott , 96 Ga. 333 ( 1895 )

Lumpkin, Justice.

Under the facts of this case, which are briefly stated in the head-note, we think it apparent that the judge committed error. If the registered deeds introduced in evidence and relied upon by the defendants were not void for forgery, no case for an injunction was made out. In the absence of any attack upon them, they should have been treated as valid deeds, duly proved, and given the probative value to which they purported to be entitled.

Although, on the day when “ the case was closed,” there was an “understanding” that these deeds would be attacked for forgery, and that evidence for this purpose could be submitted the next day, surely the filing by one of the plaintiffs of an affidavit that, to the best of his knowledge aud belief, the deeds in question were forgeries, was not of itself sufficient to prove their want of genuineness. Indeed, this was only the statutory affidavit of forgery, which at best was only sufficient to put upon the defendants the burden of proving the due execution of the deeds.

It seems, moreover, that they knew nothing of the existence of this affidavit until it was mentioned by the judge when about to render his decision; and certainly if, as seems to have been true, he regarded the attack upon the deeds, when considered in connection with “their appearance, under an inspection by the coui’t,” as sufficient to authorize a finding that they were forged and fraudulent, he ought, under the circumstances, to have allowed the defendants a reasonable opportunity to prove, if they could, by introducing evidence as to the due execution of the deeds, that they were genuine and valid. Judgment reversed.