Fain vs. Garthright. uncontroverted, must be taken as true. The question, therefore, is the same as it would be, if the plaintiff made no pretence of having such a deed. The statements of the witness, on his voir dire, are addressed to the Court-who is to determine his interest from the facts stated. He is a competent witness to prove whether he is or not interested. His voir dire is for that precise purpose. And if the witness is not impeached by the record-by any thing judicially apparent to the Court-for the purpose of passing upon his competency, his statements must be taken to be true. Otherwise, the whole object of the voir dire examination would be defeated. Here the deed is before the Court, apparently in due form executed and recorded—the witness who pears to have executed it, denies that fact. Which shall the Court believe, the witness on his oath, unimpeached, or the deed which that oath denies? About this I apprehend there can be but little doubt. 1 Green. Evid. sects. 422--3. Abrahams vs. Bunn, 4 Burrow, 2256. Butler vs Carver, 2 Starkie, R. 433. 15 East, 37. Butchers Company vs. Jones, 1 Esp. 160. 7 Green. 51. 1 C. & P. 73, 8 C. & P. 97. 2 P. & D. 538. 1 Gill &J. 366. 3 Pick. 435. ap We think, therefore, that the Court erred in admitting Mr. Pullen as a witness. [3.] The deed before referred to, from Guilford Pullen, purported to be attested by one Ray, and also by Charles Fields, a Justice of the Peace, and farther, appeared to have been executed in the county of Walton. To prove it a forgery, the defendant of fered in evidence, the testimony of persons resident in said county, at the time it appeared to be executed, to prove that at that time there was no person acting as Justice of the Peace in that county by the name of Charles Fields. It was objected to upon the ground, that by law, Magistrates are duly commissioned by the Governor, for the several districts and counties of the State, and that by law, a record of the commissions is required to be kept in the proper office at the seat of Government. And that to prove that there was no such Magistrate in the county of 'Walton at that time, it was necessary to produce a certified copy of the record of commissions, showing that he was not commissioned, as the highest and best evidence. The evidence was admitted, and that is also claimed to be error. No person is a Justice of the Peace in this State, unless he is Fain vs. Garthright. duly commissioned by the Governor as such; and a record of commissions, is by law, kept in the proper office at the seat of Government. As these things are required to be done by law, the Court will presume that the officers of the Government do their duty, and, therefore, that Justices of the Peace are commissioned, and that there is a record of such commissions. This record is accessible to parties, and transcripts may be duly certified. That Charles Fields was a Justice of the Peace in the county of Walton, when he attested this deed, is proven prima facie, by his official attestation as such. In the case of all public officers, it is not necessary, in the first instance, to produce their commissions; proof of their acts in their public capacity is enough. 1 Phillip's Evid. 226. By Buller, J. in Berryman vs. Wise, 4 T. R. 366. Leach's Crown Cases, 585, Lessee of Willink vs. Miles, 1 Peters C. C. R. 429. It is to rebut this prima facie evidence, that this proofis offered; and it is contended, that in as much as the official character of Mr. Charles Fields, J. P. can be proved by his acts, that Mr. Charles Fields's want of official character can be proved by testimony, that he did not act in that character. I do not think that this follows in this case. Is the knowledge of persons resident in that county, at the time of the execution of the deed, to be presumed to be so accurate, and so general, as not to admit of the fact that such a man as Charles Fields acted as a Justice of the Peace therein, without their knowing it? I admit that the probabilities are against the fact being so, without well informed, observing men, connected by official or professional position with the people, knowing it. And yet, such a thing is possible. The negative testimony offered does not amount to demonstrative certainty. Whereas, this is one of the few cases, where the record from the Executive office will demonstrate, with absolute certainty, a negative, to wit: if the fact be so, that Charles Fields was not a Justice of the, Peace for that county, at the time he signed this deed. In legal contemplation, and in fact, he was no Magis. trate unless he was in commission for that year-if he was com missioned, it is in legal contemplation true, that his commission was recorded. The record will, therefore, show that he was acting as a Magistrate if the fact be so, and with equal verity that he was not, if the fact be so. The record is the highest evide Fain vs. Garthright. both in its character, it being record evidence, and in the degree of its demonstrative power; for if it does not show that he was a Magistrate, the inference is irresistible, that he was not a MagisSo we think the Court erred in this particular also. trate. It is suggested that this man's attestation is good, although he was not a Justice of the Peace for Walton county, for in that event, the inference is, that he was a Justice of the Peace for some other county. This idea goes upon the assumption that the official acts of Justices of the Peace are valid out of the county for which they are elected and commissioned. Their election, commission and official oath,confine their official powers to the counin which they are elected. It has been held that marriages, solemnised out side of the jurisdictional and official limits of a Magistrate, are valid. Perhaps so, and if so, upon grounds wholly irrespective of the official powers of the Magistrate. See 2 Kent's Com. 87 to 93, and notes. [4.] The defendant relied upon the statute of limitations. The Court instructed the jury, that a bond for titles, conditioned to make them when the purchase money was paid, is color of title, and that possession under such a contract is adverse. This decision is also brought up for our revision, and we affirm it. In the numerous decisions which this Court has been called to makes in cases growing out of our statute of limitations, we have assumed, as the basis of those decisions, that is intended to be, and that we will make it, in Georgia, a statute of repose. We look upon it as a highly beneficial statute, and in its effects calculated to quiet titles, suppress litigation, promote confidence in the tenure of property, and advance all the interests of commerce.— Its policy is that of an anti-litigating jubilee, (as to lands,) once in seven years. There is no hardship in this policy. Let it be distinctly understood throughout the community, that he who has a claim to land, must assert it within seven years from its accrual or lose it, and it is not to be apprehended that many rights. will be lost for want of diligence. And it is not in fact any injustice to require such diligence. He who has a claim to land, with the means of enforcement at his command, and no impediment in his way, yet, who slumbers over it for seven years, permitting his neighbor to improve it by expenditure in the meantime, resting with confidence upon the title which he holds, deserves to lose it. If the statute, in its fair and just import, is enforced, and Fain vs. Garthright. it is well understood that it will be, it is obvious that it will give encouragement to labor, and particularly to agricultural enterprize. We are not disposed to improve land, over our title to which nangs an undefined, yet threatening cloud. The prosperity of our young and growing country, depends as much as upon any thing else, upon the encouragement which the general law holds out to industry; and upon the repose which it gives to land titles. This reasoning cannot be applied to the defendant and his title; for to him the law opens its Courts of Justice, and invites him and warns him to enter, and the door is kept wide open for a reasonable length of time. He is not in possession, and in danger of losing the fruits of his labor in improving his land. These considerations are sanctioned by high authority. See Bell vs. Morrison, 1 Peters, 360. McClung vs. Silliman, 3 Peters, 270. Bradstreet vs. Huntington, 5 Peters, 407. Hence we have disregarded some of those subtle distinctions and unreasonable exceptions to the statute, to be found profusely scattered through the English and American books. Exceptions which learned and good men in both countries have not ceased to regret, and which they have sustained, not because commended to their approval for their equity, expediency, or reasonableness, but from a disposition so prevalent (and I will add so praiseworthy) in Courts, to adhere to authority. Our own State having had, until recently, no Court so organized as to give for the State, an authoritative construction of her statutes, we are not hedged in by State decisions and usages, and feel free to give to the statute a construction in accordance with the original intent. These things premised, it is due to candor to say, that the weight of authority is against the decision we now make-that is to say, the weight of authority is against the position, that one entering upon land under an executory contract, when the consideration money is not paid, acquires an adverse possession, which time will mature into a good title. A contract for the sale of land by notes for the purchase money and bond, conditioned to make titles when the purchase money is paid, has not been usually held color of title until the purchase money is paid. We think upon principle it is, and that such principles have been settled in the books, as will upon the score of authority justify our opinion. According to the case before me, the contest is not between the defendant and his vendor. He does not plead the statute against a claim or right set up by his vendor to the land-nor is the contest between the defendant who has come into possession under an executory contract, and the assignee of that contract from the vendor, with, at the same time, a deed from the assignor. But, according to the case made, Pullen was the grantee from the State, who conveyed to one by the name of Woodward, who conveyed to the plaintiff Fain. Pullen also sold to the defendant, by the executory contract before set forth. Against Fain, who claims under Pullen, the defendant pleads the statute, Pullen being still the holder of the notes for the purchase money unpaid. There was no assignment of the interest in this contract, to Woodward by Pullen. These (This statement assumes that the deed from Pellen to Woodward was genuine, a fact controverted on the trial.) things are important to be borne in mind. It is agreed, that if the title under which the defendant entered, be ever so defective, the possession is notwithstanding adverse.— It does not depend upon the soundness of the title. So if a grantee enter under a deed not executed in conformity to law, believing the title to be good, his possession is adverse. Sumner vs. Stephens, 6 Metc. 337. 2 Ibid, 32. 3 Ibid, 91. 16 Serg. & Raw. 214. Jackson vs. Todd, 2 Cow. N. Y. R. 183. Jackson vs. Sharp, 9 John. R. 162. 12 Ibid, 365. 16 Ibid, 293. Ewing vs. Burnet, 8 Peters, 41. Angel on Limi. 435. 4 Georgia Reports, 115. In Panlet vs. Clark, the Supreme Court held, that possession may be adverse and constitute a bar, even when ouster is in terms repelled, and not to be presumed from the circumstances of the case. 4 Peters, 504. In Bradstreet vs. Huntington, the same Court says: "Wherever the proof is that one in possession holds for himself to the exclusion of all others, the possession so held, is adverse to all others, whatever relation in interest and privity he may stand in to others. This doctrine is held in reference to lessors, mortgagors, trustees, and tenants in common. Willison vs. Watkins, 3 Peters, 53. 5 Peters, 439. If the quo animo, the mind of the tenant, is to hold the property as his own, against the claim of others, which mind will be ascertained by proof, these cases make the possession adverse, even though there be privity between himself and others. Whatever may be said of the technical dis |