USA > Georgia > The bench and bar of Georgia: memoirs and sketches. With an appendix, containing a court roll from 1790-1857, etc., volume II > Part 14
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54
A plaintiff in ejectment who fails to prove possession within seven years must be non-suited. Strudwick vs. Shaw, Martin, 34; 3 Wharton's American Digest, page 196.
An uninterrupted possession and occupancy of land for five years pre- vious to January, 1775, is a good title against a grant. Anderson vs. Gilbert, 1 Bay, 375.
Five years' actual adverse possession of a tract of land under a junior grant will give the defendant a title to so much as he has in actual possession, even against a person who has a paramount title and is in the construc- tive possession of the part in dispute. Middleton vs. Duprees, 2 Nott & McCord, 310.
Ejectment and trespass will lie in South Carolina, though the plaintiff, nor any one under whom he claims, never entered within sixty years before the commencement of the suit. To establish a claim under the limitation act, it is only necessary to bring suit within five years, when there is actual possession. Frost vs. Brown, 2 Bay, 135.
In an action of trespass to try title, the occasional cutting of timber, and the exercise of such other acts of ownership over it as men are accustomed to use over woodland, is not such a possession as will divest the owner of his right to the soil under the statute of limitations. Bay- ley vs. Isby, 2 Nott & McCord, 343.
In all cases where the party relies on possession right, the extent of the claim ought to be established unequivocally, and ought to have been uni- form for the period required by the act, to give title. Williams vs. McGee, 1 Rep. Con. Ct. 97. Naked possession should carry with it only the spot occupied and superadded enclosures. Ibid.
Actual possession of a part under, or with unequivocal reference to a colorable title in writing, or a survey made by public authority, should establish a legal possession coextensive with the claim of title. Ibid. Actual possession of part of a tract of land well defined by use, or obvious and well-known boundaries, shall be coextensive with the limits of such boundaries. Ib.
One who has received a conveyance, knowing it to be defective, may yet, after the expiration of the five years, plead the statute of limitations. Strange vs. Durham, 2 Bay, 409.
A title under the statute of limitations in a third person which would bar the plaintiff, if such third person were the defendant, will defeat his recovery against any other person. Faysoux vs. Prather, 1 Nott and McC. 296.
An adverse possession for seven years is a good bar to an action brought for lands since the first of January, 1816. Moore vs. Farrow, 3 Marsh, 49, (Kentucky Reporter.)
The settlement required by the act of limitations must be attended with residence : clearing and cultivating the land is not sufficient. Hogg vs. Perry, 1 Litt. 172.
The extent of possession, so as to determine the operation of the statute of limitations, is to be ascertained by the intention with which the entry was made. Bodly vs. Coghill, 3 Marsh, 615. The act of limitations of
117
JAMES M. KELLY.
1808, applies only to cases where an actual settlement was made. Ibid.
A claim and color of title sufficient to destroy all presumption that the defendant is in under the plaintiff, is adverse. Jackson vs. Todd, 2 Cain's Rep. 183.
To constitute an adverse possession, it is not necessary that there should be a rightful title : it must, however, be a possession under claim and color of title, and exclusive of any other right. Per Spencer, Justice, Smith vs. Burtis, 9 Johnson's Rep. 174.
Adverse possession is a question exclusively for the jury. Jackson vs. Joy, 9 John. Rep. 102.
That an adverse possession may be a bar, strict proof is required that it was hostile in its inception, and had continued so for twenty years : and the possession must also be marked by definite boundaries. Brandt vs. Ogden, 1 John. Rep. 156.
There must be a real and substantial enclosure, an actual occupancy,- a possessio pedis,-which is definite, positive, and notorious, to constitute an adverse possession, when that is the only defence and is to countervail a legal title. A fence made by felling trees and lapping them over upon one another round the land, called a possession-fence, is not sufficient. Jackson vs. Schoomaker, 2 John. Rep. 230.
The statute of limitations of 21 James I., chap. 16, is similar to our own. Our act, with some few alterations, is copied from it; and the only difference relating to the time within which suit for land must be brought is that in the English act the time specified is twenty years,-our act seven years. See note, Schley's Digest, pages 200-201.
The Bill of Bracery and buying of titles, 32 Henry VIII., chap. 9, sec. 2, (see Schley's Digest, 192) provides against the selling of pretended titles when the seller is out of possession.
The deed of a person out of possession, being void under this statute, does not preclude the grantor from maintaining an action of ejectment to recover possession of the same premises. 3 Johnson's Cases, 101; 1 John. Rep. 163 ; 5 John. Rep. 489.
It is not necessary for the party to be in the actual possession of the land in order to be able to make a valid deed : it is sufficient if there be no adverse possession held by another,-the object of the statute being to prevent the sale of pretended titles ; and if there be no adverse possession there is no disputed right. 4 Bac. Ab. 495. For the last two paragraphs in Schley's Digest, note, page 194.
The Statute of South Carolina and the stat. 21 James II., chap. 6, are precisely the same. See Judge Cheves's decision in the case of Williams vs. McGee, Rep. Const. Ct. So. Ca., top page 42. Judge Cheves says that under the English statute the courts do not require any accompany- ing title to give effect to possession, and cites 1 Ld. Raymond, 741, Bal- lantine in Lim. 23; and adds, the very case of a squatter is stated, and said to be allowed by all the judges,-the case " If a cottage is built in defiance of the lord,' and quiet possession has been had for twenty years, it is within the statute." Ballantine, 26; Buller's N. P. 103. Ibid.
The doctrine of color of title as a necessary foundation of acts of limita- tion is only to be found in the American decisions, in which it has been sometimes rather capriciously adopted, and almost always drawn from the peculiar phraseology of the particular act under consideration. Ib.
118
BENCH AND BAR OF GEORGIA.
(Note. This is the case in No. Ca. Sec the case of Tates' heirs vs. Southard.)
Judge Cheves continues :- " In our act of limitation there is nothing requiring or authorizing it,"-i. e. color of title. (Note. The same may be said of the Georgia statute of limitations. As regards color of title, not a word is said about it,-nothing requiring or authorizing it.)
In the case of Williams vs. McGee, the cases of Jones vs. Smith, and Gourdien vs. Theus, are overruled, and the case of Reid vs. Eifort esta- blished as the law of South Carolina on the subject,-in which case it was decided-1. That a naked possession will give title ; 2. That actual pos -. session of a part, under certain evidence of claim, shall be considered a legal possession of the whole quantity claimed.
John C. Stanly vs. Thomas Turner, Conference Reports, 553. In this case, McCay, Judge, ruled that seven years' adverse possession without color of title would hold against legal title. Judge McCay, in his opinion, copies the act of 21 Jac. I., chap. 16, and quotes English cases, Esp. 430, 3 Black. 206, to show that the plaintiff must have a right of entry. " Therefore, (the judge say's,) if the lessor of the plaintiff is not able to prove himself or his ancestors to have been in possession within twenty years before the action brought, he shall be nonsuited." And
The possession or entry of the lessor of the plaintiff within twenty years, which is necessary to give him title, must be an actual possession or entry, not a presumptive or implied one. Esp. 432; 2 H. 1142.
So that the twenty years' possession, which is sufficient to bar the ejectment or to give a title, must be an adverse possession; for, when it appears not to be adverse, the statute of limitations does not run. Esp. 433. In the case of Reading vs. Royston, 2 Sal. 423, this doctrine is more fully explained ; also, in Cowp. 217. It is to be submitted to a jury to say what is an adverse possession.
Judge McCay, however, was overruled by Taylor and Locke, Judges, who held that seven years' possession without a color of title is not suffi- cient to bar the plaintiff in ejectment.
But see note to the end of this case. These three judges appeared to found their opinion on the principles advanced in the observations on the statute of limitations published by Judge Taylor. The case is referred to in Adams on Ejectment, (Tillinghast's,) top page 461. It is referred to there as in Cain's & Norw. Rep. 545,-when it is in Conference Reports by Cain and Norw., page 533.
By reference to the North Carolina cases, it will be seen that the color of title owes its origin to the peculiar phraseology of the statutes of that State of 1715.
Judge Johnson's opinion as to the object of the statute of limitations, delivered in the case of Richards and others vs. The Maryland Insurance Company, 8 Cranch's Rep. 92, 93. See Tillinghast's Adams, 460.
The statute of limitations is intended, not for the punishment of those who neglect to assert their rights by suit, but for the protection of those who have remained in possession under color of title believed to be good. McIver vs. Ragan, 2 Wheat. Rep. 29, (per Marshall, Ch. J.) See Tilling- hast's Adams, 461.
Statutes of limitation relate to the remedies which are furnished in the courts. They rather establish that certain circumstances shall amount to evidence that a contract has been performed, than dispense with its per-
119
JAMES M. KELLY.
formance. Sturges vs. Crowninshield, 4 Wheat. Rep. 207, per Mar- shall, Ch. J. See Tillinghast's Adams, 461.
To constitute a valid and effectual adverse possession, it is necessary-
1. That it be commenced under color and claim of title. It has never been considered as necessary to constitute an adverse possession, that there should be a rightful title. See cases cited in 9 Johns. Rep. 179, 180. Same point, 18 Johns. Rep. 40; do. 355; 3 Johns. Cas. 124; 13 Johns. Rep. 118; 5 Cow. 92, 350; 1 Cow. 609; 1 Cow. 285; 1 Hopk. Rep. 448 ; 3 Johns. Cas. 115, 117; 6 Cow. 680; Conf. Rep. 533; 2 N. C. Law Repos. 399; 1 Murph. 14; 3 Murph. 166. Adverse possession is a possession under color and claim of title. 9 Johns. Rep. 179, 180; 3 Conn. Rep. 403.
2. The act of limitations ripens no possession into title which is unac- companied with color of title. 2 Hayw. 114, 104, 69, 57, 134; 1 Wheat. 480; 1 Har. & McHen. Rep. 151; 2 Hayw. 34 ; see Tillinghast's Adams, 461, 462.
The occasional exercise of dominion, by broken and unconnected acts of ownership, over property which may be made permanently productive, is in no respect calculated to assert to the world a claim of right; for such conduct bespeaks rather the fitful evasions of a conscious trespasser than the confident claim of a rightful owner. Doe ex dem. Jones vs. Ridley, 2 N. C. Law Repos. 400, (Ch. J. Taylor.)
CASES REFERRED TO.
1824. Doe on dem. of Tate's heirs vs. Southard, 3 Hawks, 119. Defines color of title.
1816. N. C. Term Reports, Trustees of the University vs. Blount, 13. Will, a color of title.
1811. 2 Murphy's Reports, 14, the heirs of Hill vs. the heirs of Wilson. Color of title.
1819. 3 do. do. 539, Doe on dem. of Reddick and wife vs. Leggat. Color of title with notice. 3 do. do. 562, Doe on several demises of Richard Jones and Taunton Jones vs. Richard Putney, Sen. Color of title by sheriff's deed.
1820. Doe on dem. of Tate vs. Southard, 1 Hawks, 45. Known and visible lines.
1796. Doe on dem. of Andrews vs. Mulford, 1 Hayw., top page 358 to 371.
Martin, 34, Wharton's Digest, 196. PIff. must prove possession within seven years.
Conference Reports, Stanly vs. Turner, 533.
Report Const. Court of S. C., top page, 42,-Williams vs. McGee.
1821. Turnipseed vs. Lewis Busby, 1 McCord, 279, 283. Possession must be continued.
1822. Cabiness vs. Mahon, 2 McCord, 273 to 275. The deed to show the extent of possession.
1 Johns. Rep. 156; 2 do. 230; 9 do. 102, 174. Ballantine on Limi- tations, 23, 26, n. Buller's Nisi Prius, 103, n. Schley's Digest, 192, 194. 1 Nott & McCord, 373,-great case. 10 Johns. Rep. 475; 8 Cranch, 229; 3 Washington, 475; Reeves' Dom. Rel. 32, as to mainten- ance.
In this case (at bar) it appeared that the grant to Geo. Flannagan bore date 10th Sept. 1830, and the deed to Howell, from Biving Brooks, was
120
BENCH AND BAR OF GEORGIA.
older than the grant, (the deed bearing date in 1828.) It was contended. therefore, that Howell's possession was tortious,-that he was a trespasser, and not entitled to the benefit of the statute of limitations. Judge COLE, presiding, remarked that he was not entirely satisfied that a deed under such circumstances was sufficient to support an adverse possession, though he believed it was; and added that " any possession, when the party goes in bona fide and in good faith, and not in fraud, is an adverse posses- sion."
It is not necessary to dwell longer on the legal qualifications of Mr. Kelly, his standing at the bar, or his position in society. Enough has already been shown to place him on high ground in these respects. He had overcome, in a great measure, his habits of drink,-so much so, that he was considered a reformed man. As a just consequence, he valued himself more, and felt that it was his privilege to achieve much for his own happiness and that of others. ยท He had set in motion, or had at least given an impetus to, a change in the Constitution, to authorize a Supreme Court for the correction of errors, while he served his only session in the Senate, 1839. The amendment for this object, after having received the proper formalities, became a part of the Constitution at the session of the Legislature in 1843; and, at the following session, " An act to carry into effect that part of the first section of the third article of the Constitution which requires the establish- ment of a supreme court for the correction of errors, and to organize the same, and to regulate the proceedings thereof," was passed, and received the Executive approval, December 10, 1845. It was signed by Charles J. Jenkins, Speaker of the House of Representatives, Absalom H. Chappell, President of the Senate, and George W. Crawford, Governor.
The 12th section is here given, as creating the office which gave a new turn to the labors and fortunes of Mr. Kelly :-
12. And be it further enacted, That some fit and proper person shall be elected by the judges of said court, who shall hold his office during the term of six years, unless sooner removed by the court, and shall receive for his services a salary from the State of one thousand dollars per annum. Said reporter shall attend all the sessions of said court, and report, in a proper and professional manner, all the decisions there made, with the reasons therefor; and he shall not, during his service as reporter, appear as counsel or act as attorney in any case in any court in this State. The reporter shall, from time to time, publish in good and substantial form the reports so made as aforesaid ; and if at any time he shall neglect to publish, within four months after sessions for each year have closed, the decisions of that year, he shall forfeit one-fourth of his salary for that year, and another fourth for every additional month's delay : Provided, that if the judges of said court, or a majority of them, shall certify that such delay was not
JAMES M. KELLY. 121
from any fault of the reporter himself, or those under his control, such forfeiture shall not be incurred. The reporter shall also be allowed the copyright. And provided, further, that he furnish, free of expense and well bound, one copy of said reports to each judge of said court for the time-being ; one copy to the clerk of said court, to be kept in his office as public property; twenty-five copies to the State, to be delivered to his Excellency the Governor as soon as may be, said twenty-five copies to be disposed of as the General Assembly may direct ; and a copy to each clerk of the Superior Court for each county in the State, to be kept in his office, free for the perusal of any one.
Pursuant to the act, the Legislature elected the Honorable JOSEPH HENRY LUMPKIN, EUGENIUS A. NISBET, and HIRAM WARNER, Judges of the Supreme Court of Georgia, who made choice of Mr. Kelly as Reporter. The following document was no doubt prized by the gentleman to whom it issued more than would have been a diplomatic mission of the first class from the President of the United States :-
STATE OF GEORGIA .- By his Excellency George W. Crawford, Governor and Commander-in-chief of the Army and Navy of the State and of the Militia thereof;
To JAMES M. KELLY, Esquire,-greeting :
Whereas, you were elected on the 26th day of January, 1846, Reporter of the Supreme Court of the State of Georgia, I do therefore, by virtue of the power and authority in me vested by law, hereby commission you to do and perform all and singular the duties incumbent on you as reporter as aforesaid, according to law and the trust reposed in you.
Given under my hand and the seal of the Executive, at the Capitol in Milledgeville, this 29th day of January, 1846, and of the Independence of the United States the seventieth.
By the Governor :
JOHN H. STEELE, S. E. D.
The first term of the court was held at Cassville, in March, 1846, to which six cases had been returned on writs of error. They occupy thirty-one pages of the first volume. The sessions of the court for that year ended at Milledgeville, in November, soon after which the reporter visited New York to publish his book, inaugurating a new authority in the judicial annals of the country. The task completed, and the reporter again at his post in Georgia, his solicitude is well expressed in the following letter to the late Hon. Edwin R. Brown, of Americus :-
PERRY, April 2, 1847.
DEAR BROWN :- I received your favor of 25th ult., enclosing $25, upon my return from Cassville.
I feel highly complimented by your approval of my book. I have suffered intensely concerning it. No kind mother ever suffered more,
.
.
122
BENCH AND BAR OF GEORGIA.
even over the dying couch of a favorite sick child. I nursed it diligently ; and yet I was unable to accomplish the undertaking in the manner I desired. I promise that the next shall be altogether superior in the manner and style of its execution. I expect to begin its publication shortly, having already forty-five cases, creating an amount of legal matter equal to 1 Peters's Reports.
I have gained a store of knowledge in the way of book-making which, when I commenced the business, I did not dream of. I have labored hard ; and Judge Kinne, of New York, assured me that no book of reports, of the same amount of matter, had been published in so short a time. Time is an essential requisite in the publication of such a work. The proofs should be carefully examined and re-examined, so as to correct all errors, and, in this, time and even deliberation are necessary. With bad manuscript and short time, errors will exist as matter of course. My first volume, however numerous the errors, contains more correct matter than any book of reports in the United States. It contains twice as much matter as Peters's, over twenty-five per cent. more than Cowen's; and, to average the reports extant, it may be set down at from thirty to fifty per cent. more matter.
With regard to the arguments of counsel, I was induced to set them forth in extenso, from the fact that, at the commencement of last year, we did not expect to have a sufficient number of cases to make a medium- sized volume; and hence I encouraged counsel to write out their argu- ments more at length, and promised to publish them,-which I felt bound to comply with. I shall in each succeeding volume publish a synopsis of the arguments, with the authorities cited, &c. In some very important cases I may publish the arguments in extenso. This, how- ever, I must leave to my own sense of their importance to the profession and the courts.
I presented a copy of my reports to Chancellor Kent, and have two letters from him,-one acknowledging the receipt of the present, and the other-a month afterward-complimenting our court and bar in the highest terms for the legal learning and research displayed in the re- ported cases, &c.
I have received the case of Guerry vs. Perryman, use Dennard, also your argument and Hill's; and I find a good deal of matter and some points in your argument which are not referred to in the decision, nor in the argument of Mr. Hill, nor in the history of the case as stated by the court. I shall therefore omit those parts in publishing.
At some time, if I can have an opportunity, I would be glad to give you my views as to the future course to be pursued in this case. I will now say that an order of Twiggs Superior Court should be obtained, giving Durham (the security) the control of the decree, he having paid as security.
The statute gives the security the control against his principal to re- munerate, &c. Well, has not the security the exclusive right to control until reimbursed ? If so, have Guerry and the other complainants in the decree any right to control for the balance they claim until the control given the security by the statute has accomplished its end and purpose ? The complainants (Guerry and others in the decree) elected to force the money out of the security, with a full knowledge of his right to control the decree against principal after payment. Are they not, then, post- poned in their right which they claim to the alleged balance due them on
123
JAMES M. KELLY.
the decree,-to the right of the security to reimburse himself out of the decree? Guerry owes Perryman, say $1000. In equity he is considered as bringing the money into court. It is Perryman's money. It is claimed under the decree against him. Who has the best right to it? Durham, who controls the decree under the statute for reimbursement, or Guerry and others, who by their own act conferred this statutory power upon Durham by suing him and enforcing payment from him as security ? I remain truly your friend,
JAMES M. KELLY.
P.S .- The compensation to my feelings derived from the general approval by the members of the bar and the judges of my first effort is encouraging. Added to this, the consciousness of having done the very best I could, and of having spared neither pains nor expense to discharge my duty acceptably to my friends and the public, gives quiet to my mind, which otherwise would have been greatly disturbed. K.
The allusion in the foregoing letter to the necessity of careful proof-reading in law-reports brings to mind a late judge of the Supreme Court of another State. About the year 1840, the Legislature of Alabama abolished the office of reporter, and devolved upon the judges, by an increase of salary, the labor of reporting their own decisions and seeing them through the press. The volumes were published by contract at Tuscaloosa, then the seat of Government, where two of the judges* resided. The other judge lived in Mobile. The proofs, for several volumes, had been read by the two resident members of the court; but their distant associate, deeming it right to bear some of the burden, requested the publisher to send the proof-sheets to him every morning at the hotel, where he would read them before court- hour,-the Supreme Court being then in session at the Capitol. While the author (then connected with the press) held the manu- script, the near-sighted judge glanced hastily over the print, read- ing aloud, stopping occasionally to mark an error; but, while he called the words correctly, he allowed so many inverted letters, such wrong punctuation, and other defects in the matter, to escape him, that, on being told of it next time, he gave it up as a hopeless job, leaving the work to progress as before. From that judge- who was a profound jurist and a man of great energy of cha- racter (he died in 1847)-the author received a letter, which he inserts here by way of grateful remembrance :-
MOBILE, October 27, 1834.
DEAR SIR :- On my return to this place after an absence of some months, I found your letter of the 1st instant. I hasten to answer it.
* Collier and Ormond.
124
BENCH AND BAR OF GEORGIA.
Mobile has been the most healthy point in Alabama during all the past summer; and, whilst all the interior part of the State has been visited with disease and death, this place has comparatively escaped.
I still think of Mobile as I mentioned to you when I had the pleasure of seeing you here. Since that time we have had some accessions to our bar, and more are spoken of. From the rapid increase of this place during the last year, property has risen to very high prices. The office I am now in (the same as when you were here) could be rented for five hundred dollars.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.