Roe, casual ejector, and Green, adm'r, vs. Kersey et al.

land, Nixon made Kersey a deed, and received ten dollars, and an eighty acre and forty acre land warrant therefor; that Nixon never made any written assignment of said bond to Whitsett; that Nixon gave his notes to Gill for the land, and paid some, and some remained unpaid; that Whitsett was to pay the purchase money when he got a title.

Defendant then offered, in evidence, a copy of the bond for titles, in accordance with the contents proven, the execution of the bond being admitted.

Upon objection made, the Court repelled the bond as evidence, on the ground that it furnished no color of title to Whitsett or his tenants, and counsel for defendant excepted.

The plaintiff introduced some proof that created a conflict in the testimony as to the time that Coney's occupancy of the land commenced, and it also appeared in evidence on the trial, that John Whitsett called on Willis A. Hawkins, Esq., in 1849 or 1850, and proposed to give him three hundred dollars to buy up the title of Osteen's orphans to the land. This action was commenced 17th May, 1854.

The testimony being closed, the presiding Judge charged the jury: "That even though they should believe that the defendants had been in possession of the land in dispute for seven years, holding adversely to the plaintiff, yet such possession, unless under color of title, did not constitute a good title under the statute of limitations; and that the bond for titles, from Gill to Nixon, was not a color of title for the defendants."

The jury returned a verdict in favor of the plaintiffs for the premises in dispute, and $700 00, for mesne profits, with cost of suit.

The plaintiffs in error seek a reversal of the judgment, on the ground that the Court erred in repelling the copybond, and in charging the jury as before stated.

SLAUGHTER & ELY and VASON & DAVIS for plaintiffs in

error.

WILLS & HAWKINS for defendants in error.

Roe, casual ejector, and Green, adm'r, vs. Kersey et al.

By the Court.-JENKINS, J., delivering the opinion.

There are two exceptions to the judgment of the Court below, and the case presents the anomaly of error assigned, first, in the rejection of a document offered in evidence, and secondly, in the charge given to the jury, as to the effects of that very document upon the rights of the parties. Nevertheless, we have the certificate of the presiding Judge, that the bill of exceptions is true, and must take the case as we find it.

The defendant below sought to defend himself by possession, under color of title. As color of title, he offered, in evidence, a bond for titles to the land in dispute, from one Gill to one Nixon, conditioned to make titles to Nixon, upon the payment of the purchase-money. There was evidence on the trial that Nixon had, by arrangement between himself and Whitsett, (the defendant's intestate), bargained for the land, with Gill, for Whitsett, but had given his own notes for it, and taken a bond for titles to himself; that he had paid a part of the consideration money, and that his notes were still out for the remainder; that Whitsett had paid him $500 only, and that he had never assigned the bond to Whitsett; that Nixon had never been in possession of the land, and that the parties in actual possession were the tenants of Whitsett.

This bond, or a copy of it, was the document offered and rejected by the Court, as color of title in Whitsett's administrator. The Court rejected it, because "it furnished no color of title to Whitsett, or his tenants ;" and so, also, he charged the jury.

We consider (as covering both exceptions) the question, whether this bond for titles was available to Whitsett's representative as color of title in law?

Color of title cannot rest in parol. There must be a document of some sort produced, to make color of title. That document must, upon inspection, evidence some right, or color of right in the party seeking to use it. A cannot

Patterson et al., vs. Hickey.

show color of title in himself, by introducing a deed from B to C.

A bond for titles may be a color of title, but it can only. give color to the obligee, or to his assignee. Here Nixon was the obligee, and he never assigned the bond. Whitsett never acquired title in the bond; how, then, can the bond be color of title to him? But, it is said he had an equity in the bond, growing out of the facts, that Nixon bargained for him, and that he had paid Nixon $5 00.

The reply is, that an equity, to be available in such case, must be a perfect equity. Whitsett evidently had no perfect equity, in this matter, against Nixon. This, he could only acquire by the payment, to Nixon, of the purchasemoney, which he had not done. As to any equity against Gill, the obligor, that is still more imperfect. It does not appear that Gill knew him in the contract at all. To the assertion of a right under the bond, against Gill, two things are necessary, first, the payment of the entire purchase-money to Gill; secondly, the assignment of the bond by Nixon. To allow an imperfect equity, under a bond for titles, resting in parol, to establish a color of title, as against a party showing paramount paper title, would be stretching the doctrine quite too far.

Judgment affirmed.

PATTERSON et al., vs. HICKEY.

Where the question is revocavit vel non, parol evidence, as to the acts and declarations of the testator, are admissible, although made at any time between the making the will and the death of the testator.

Issue of devisavat vel non, in Chattahoochee Superior Court.

Tried before Judge PERKINS, at the May Term, 1860.

The facts and questions in this case, as gathered from a somewhat meagre record, are as follows:

Patterson et al., as. Hickey.

On the 31st day of March, 1854, James Hickey executed a will, disposing an estate, consisting of lands, negro slaves, and choses in action, worth, in the aggregate, $50,000 00, or more. The record contains no copy of the will, and its provisions are, therefore, not given. At the time the will was executed, the testator requested the witnesses to keep it secret, giving as a reason therefor, that if its provisions were known, it might produce hard feelings, and that he might not then die, and also might thereafter wish to change his will. Contemporaneous with the execution of the will, there were difficulties existing, and lawsuits pending between the testator and Robert C. Patterson, the husband of his deceased daughter, and the widows of two of his deceased sons, relating to some land and negroes received by his said sons in their lifetime, and by said Patterson in the lifetime of his wife, from the said testator. The said sons and daughter of testator left children surviving them. Besides these grandchildren, the testator had one son, James B. Hickey, and one daughter, a Mrs. Jones, living at the time the will was made. Between the time of making the will and his death, in 1859, the testator largely increased his property, and the lawsuits between him and his grand-children, were all compromised and settled, and friendly relations between him and his sonin-law and daughters-in-law were fully restored. The testator died, and the will, made as aforesaid, was found in a bureau drawer, separate from the testator's other papers, and in a place where he did not usually deposit his papers for safe keeping. The will was written on one whole sheet of paper, and when presented for probate, it was in two pieces, and had the appearance of having been cut, or torn, in two pieces. The draftsman who wrote the will, and who was one of the attesting witnesses to the same, testified that, in his opinion, the will was not worn in two pieces, as the edges of the paper were even and smooth, and did not look as if it had been worn. Although the will was in two parts, no word or sentence of the same was changed, obliterated, or destroyed. The testator's wife, his son, James B. Hickey, and his daughter, Mrs. Jones, were all present when the will

Patterson et al,, vs. Hickey.

was executed. The testator's wife stated what property she wanted, and how it should be given, and the will was written in accordance with her wishes, which were assented to and approved by the testator. So it was with the property given to Mrs. Jones.

After the testator's death, the will was propounded, and offered for probate, and recorded by James B. Hickey, and a caveat was filed by Robert C. Patterson and others, in behalf of the children of the testator's deceased sons and daughter. On the trial of the case, the facts before stated appeared in evidence, together with a good deal of testimony as to what and how much property had been given by testator, in his lifetime, to his children. It was also proven that the testator, in speaking of the will to his wife, said: "Old lady, that is a thing I thought I never would do; the laws of our country was as good a will as I wanted."

In the progress of the trial, the caveators proposed to prove that after the will was made, the testator said, "that he intended his children and grand-children should share equally in his property."

Also, "that it was a part of the understanding in the compromise of the law-suits, that the testator would make all his children equal in the division of his property."

Also, "that the testator agreed, in order to bring about a settlement of the law-suits, he would make his property equal among his grand-children."

Also, "that the testator promised Mary C. Hickey, the widow of his deceased son, Alexander C. Hickey, that, at his death, he would give her children an equal share of his property with his other children, and that this promise caused the said Mary C. Hickey to make a compromise of the law-suit then pending between the testator and herself, and that this conversation and promise took place in 1856."

Also, "that the testator said that he knew what he had given his other children, and that he would keep an account of it, and when he was done with his property, he intended that all his children should have an equal share."

Upon objection made thereto, by counsel for the pro