Bennett v. Walker
64 Ga. 326
Ga.
1879
Check Treatment
Bleckley, Justice.

1. The constitution of 1877 declares, in article 11th, sec* tion 1st, that’ “ all suits by or against a county, shall be in the name thereof.” The case at bar was commenced after this constitution went into effect, and was not in the name of the county, but in the names of certain persons describing themselves as county commissioners. By the local act applicable to the subject, these commissioners constituted the proper board of magistracy to bring the action, but under the provision of the constitution just cited, it cannot be regarded as a suit by the county, not being in the name of the county. ' Possibly, if the evidence showed that the commissioners had once had actual possession of the property sued for, and had been deprived thereof, the action in its present shape might be maintainable to re-establish their possession, but no such fact appears. And it is not pretended that as individuals qr natural persons they have any title to the premises. However ample may be the title of the county, there can be no recovery on it, for the very conclusive reason that the county is not before the court as a suitor. The county can be neither plaintiff nor defendant otherwise than in its own name.

2. Taking together the body of the declaration and the abstract of title annexed to it, and it is manifest that the complaint is founded upon prescriptive title in the county of McIntosh, and not upon any alleged title in the city of Darien. It is also clear that the character in which the plaintiffs sue has no relation to their functions as representatives of the city, but that they sue only as official organs of the county. And though true is it that by the act ere*331ating the board of commissioners (see Acts of 1876, p. 283) the same persons constitute the corporate magistracy of both county and city, yet the two corporations are not thereby blended or confounded, but they remain distinct and separate entities. It follows that the present action can no more be treated as a suit by the city than it can be treated as a suit by the county, and that no recovery could take place on any title which the evidence may show to be, or to have been, in the city of Darien. In statutory complaint for land there is no fiction, and failure is inevitable where the party who brings the suit does not show in himself a right to the premises. The non-suit ought to have been granted on the defendant’s motion.

3. If the county had been the party plaintiff in its own name, the result of the suit, under the facts in the record as a whole, should have turned upon the question of fraud .or no fraud in the defendant’s color of title — the deed from the ordinary under which the defendant took possession and held through the prescriptive term. That deed was made by the ordinary as representing the county, and by accepting it the purchaser recognized the county as owner of the premises at the time the conveyance was executed. So long as he held and occupied under the deed, he was in under the county as his acknowledged vendor. The deed would not operate as a conveyance of title out of the county, for the reason that the ordinary had no power to make it. In section 495 the Code declares, that “ the ordinary has the control of all property belonging to the county, and may by order, to be entered on the minutes, direct the disposal of any real property which can lawfully be disposed of, and appoint a commission to make the titles thereto, and the conveyance of sueh commission in accordance with such order vests the grantee or vendee with the title of the county.” Eor some reason, perhaps to prevent clandestine transactions injurious to the county, the ordinary is not permitted to execute any conveyance himself; he can only appoint a commission for that purpose. But oyen a void *332deed, if believed to be valid, and taken in good faith, will serve as color of title on which to rest a prescription; though if tainted with actual fraud affecting the conscience of the purchaser, it will, of course, be unavailing. Code, §2683. There seems to have been some question of the mode of sale; and the recital of the deed on that subject was assailed as false. There was also a question touching the adequacy of the consideration ; and there was evidence to the effect that the entire consideration was made up of insolvent costs which were a legal charge only on fines and forfeitures, and to the payment of which the general revenue or the property of the county could not lawfully be appropriated. No doubt these matters bore strongly against the good faith of the entire transaction, and would warrant a jury having convictions that way in finding fraud.

It follows from what we have said that the court erred both in refusing to grant a non-suit and in overruling the motion for a new trial.

Judgment reversed.