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Markham vs. The State.
Parker claimed; witness had seen it in Parkers possession for months before.
Joseph Marchal sworn, testified, that prisoner brought a silver watch to witness's watchmaker's shop in August, and asked witness to repair it; after he left the watch he came back the same day or the day after; witness laid the watch on the show case and turned away, and when he looked again prisoner and the watch were both gone; it was the same watch as that brought to him by Parker.
D. Brooks swore, that he was with prisoner on the day that he was put in the calaboose, and that prisoner told him that he was going to Cleveland, Tennessee, that night; that he had a watch at the jeweler's to be repaired, which he wished to get before leaving; witness saw him again late in the evening; that he was drunk, sitting down and talking loud; witness took hold of his foot to shake him, to caution him not to talk so loud; felt something in his gaiter which he took out and found to be a small silver watch ; witness put it back and left him.
No evidence was introduced by the prisoner.
The Court, among other things, charged the jury," that if Aaron M. Thomason was in possession and occupancy of the house from which the watch was alleged to have been taken at the time it was taken, that this was prima facie evidence of ownership, and sufficient to sustain that part of the charge in the bill of indictment."
Defendant's counsel requested the Court to charge the jury, “that if they believed from the evidence that the watch was taken from the hired lodgings of a boarder in the house of Thomason, that the indictment should have so charged it, and that it was not sufficient to have charged that the watch was taken from the house of Thomason." This charge the Court refused to give, and the defendant's counsel excepted.
The jury found the defendant guilty, and he moved for a new trial on the following grounds:
Markbam vs. The State.
1st. Because the verdict is contrary to the weight of evidence, and contrary to law.
2d. Because the Court refused to give the charge as requested by the defendant's counsel above set out.
3d. Because the Court charged the jury as above set out.
This motion was overruled by the Court, and the defendant excepted and filed his bill of exceptions, saying that the Court erred,
1st. In refusing to charge as requested by defendant's counsel.
2d. In charging the jury as he did charge.
3d. In refusing to grant a new trial upon the grounds taken in said motion.
HAMMOND & Sox, for plaintiff
' in error.
Sol. Gen., contra.
By the Court.- McDonald, J. delivering the opinion.
[1.] The possession and occupancy of the house by Thomason, was evidence of such ownership thereof in him, as was sufficient to sustain the allegation in the indictment that the prisoner entered his dwelling house.
[2.] There was no evidence that the room from which the watch was stolen, was the hired lodgings of a boarder. A boarder lodged there, but there was no evidence that he had hired that particular room. There being no evidence to support the request made by the prisoner's counsel of the Court to charge the jury, it was not error in the presiding Judge to refuse it.
The verdict of the jury is well sustained by the evidence.
Burkhalter vs. Ector.
John Doe, ex. dem., John L. BURKHALTER, plaintiff in error,
vs. RICHARD Roe, cas. ejector, and Walton Ector, tenant in possession, defendant in error.
[1.] An order of Court appointing A. C. C. administrator on the estate of J. B.C., on
his giving bond and security in $1000, with a subsequent order granting A. C. C. leave to sal land as such administrator, is admissible to prove the adminis
tration. [2.] A subsequent purchaser of land having actual notice of a prior unrecorded
deed for the same land, is not protected against the claim of the grantee in such prior deed.
Ejectment, from Merriwether county. Tried before Judge Bull, at August Term, 1857.
This was an action of ejectment to recover let of land No. 255, in the 3d section and 10th district of originally Troup, now Merriwether county.
On the trial, the plaintiff offered in evidence,
ist. A grant from the State to Martha Rozier, dated 31st January, 1828.
2d. A deed from Martha Rozier, made in Warren county, to James Carter, of said lot, dated 6th March, 1830, recorded 25th March, 1852.
3. A deed from James B. Carter, made in Warren county, to John L. Burkhalter, dated 4th March, 1837, recorded 17th Feb. 1857.
Plaintiff then closed.
Defendant introduced and read in evidence,
1st. A deed by Anderson C. Carter, as administrator of James B. Carter, for said lot, to David C. Gresham, dated 5th October, 1852, recorded 3d, November, 1852.
2. An exemplification from the Court of Ordinary of Macon county, ordering letters of administration on the estate of James B. Carter, deceased, to be granted to Anderson C. Carter, upon his giving bond and security in the sum of one
Burkbalter vs. Ector.
thousand dollars; and a further order of said Court granting leave to said administrator to sell the real estate of deceased, consisting of lots of land No. 255, in the 10th district of Merriwether county, Nos. 8 and 2 in Appling county.
Plaintiff objected to the introduction of this exemplification on the ground that the order appointing the administrator was not absolute, and that administration could not be proved in this way. The Court overruled the objection.
3. Defendant next offered a deed (quit claim) from David C. Gresham, to Walton Ector, dated 22d June, 1853, recorded 14th January, 1854.
4. Then a deed from A. C. Carter and M. L. Carter, to David C. Gresham of said lot, dated 30th Dec., 1851, recorded 25th March, 1852, and closed.
The Court charged the jury, amongst other things, that in ejectment it was incumbent on the plaintiff to show a legal title in himself, for he can recover only on the strength of his own title, and not on the weakness of his adversary's. That a subsequent deed recorded within twelve months after it was made, took precedence of a prior deed not recorded within the time. That a deed from the administrator made according to law, was the same as a deed made by the intestate in his lifetime. That the only notice prescribed by the statute, was registry. That a subsequent purchaser with actual notice of a prior bona fide title would not be protected against the prior unrecorded deed; but this actual notice should be proven affirmatively.
The jury found for the defendant, and plaintiff moved for a new trial on the following grounds:
1st. That the Court erred in admitting in evidence the exemplification of the records from the Court of Ordinary of Macon county, to prove that Anderson C. Carter was the administrator of James B. Carter, deceased, and in holding that
Burkhalter vs. Ector.
the order appearing in said record is absolute and unconditional.
2d. That the Court erred in charging the jury that the registry of deeds was the only mode pointed out by the statute, of giving notice of title; but that a subsequent purchaser with actual notice was not protected, though the former deed had not been recorded.
3. Because the verdict of the jury is contrary to law and the evidence.
The motion for new trial was refused, and plaintiff excepted.
HARRIS & BIGHAM, for plaintiff in error.
RAMSEY & KING, contra.
By the Court.—McDonald, J. delivering the opinion.
The first error assigned in this case, and which is incorporated in the motion for a new trial, is the admission by the Court as evidence in the cause, the exemplification from the Court of Ordinary of Macon county, of the appointment of Anderson C. Carter, administrator of James B. Carter, dec'd.
[1.] The exemplification shows that he was appointed on his giving bond and security in the sum of one thousand dollars. The Court granting the order was held on the 18th of November, 1851. At the June Term thereafter of the same Court, the same exemplification shows that leave was granted to the said Anderson C. Carter as administrator of James B. Carter, to sell three several tracts of land of the deceased, and among them was the tract of land in controversy. The Court granting the administration ordered the land to be sold, and the legal presumption is that Anderson C. Carter had complied with the terms of the order, and was duly qualified as administrator, and the presiding Judge, therefore, comunitted no error in admitting the evidence.
[2.] There is no error in the charge of the Court as pre