2 Ga. 143 | Ga. | 1847
delivering the opinion.
This was an action of Ejectment, instituted by the plaintiff as the lessee of Littleberry Carter, against the defendant, to recover the possession of a lot of land number 70, in the 9th district of Muscogee County, and was tried at the last November Term of Muscogee Superior Court.
The plaintiff introduced in evidence a grant from the State of Georgia, bearing date on the second day of July, 1845, to the lessor of the plaintiff, Littleberry Carter, for the premises in dispute. This grant was made to Carter in pursuance of an act of the Legislature, passed on the 21st December, 1843, on the terms and conditions stated in that act. Plaintiff then proved the tenant, Thomas Brinsfield, in possession of the premises, and the yearly value of the rent, and closed his case.
The defendant, under his plea of the general issue, and the Statute of limitations, introduced in evidence a deed to the premises, from one Alva Perry and Simon Perry, to one John Scurlock, dated 4th March, 1837, and a deed from Scurlock to one Bedford B. Brinsfield, dated 15th January, 1844, which deeds had been duly registered in the County of Muscogee. It was admitted that the land was not drawn by Carter, to whom the grant issued; but who was the fortunate drawer the record does not inform us. It was also admitted that the Perrys were in possession of the premises before and at the time of making the deed to Bedford B. Brinsfield, and that the defendant, Thomas Brinsfield, was the tenant of Bed-ford B. A verdict was found for the plaintiff, and the case now comes before us on a bill of exceptions and writ of error to the decision of the Court below. The errors assigned by the plaintiff are, first, because the Court below refused to charge the jury that the quiet and peaceable possession of the premises by the defendant, and those under whom he claims, holding adversely under color of title for seven years next before the commencement of the action, was a bar to said suit. Second, because the Court refused to charge the jury that the Statute of 1843, under which the grant to the plaintiff was issued, was unconstitutional. Third, because the Court refused to charge the jury that the said Act of 1843 conveyed no right to the plaintiff, inasmuch as the word “ grant” is omitted in the body of the act.
Admit the position assumed by the plaintiff in error, that the act of the Legislature is a contract, what sort of a contract is it? what are its terms and obligations, and what rights does it confer upon the drawer 1 "We must take into consideration all the terms and stipulations of the contract. The act declares, if the citizen will give in his name to the person appointed, and pay him, not the State, twenty-five cents, he ' shall have a chance to draw a lot of land in the land lottery; at the same time the act declares to him, if you draw a lot you will be entitled to receive a grant for the
The land then belonging to the State, it was competent for the sovereign power of the State to dispose of it, as was done by the Act of 1843. Nor has the drawer any just cause Of complaint against the State for making such disposition, Instead of enforcing the forfeiture incurred by the drawer in not complying with the terms of the Act of 1825, at the end of the two years, the Legislature not only reduced the price of the grant fee to a mere nominal sum, but extended the time, from year to year, until the
The argument for the plaintiff in error assumes the ground, that the State had’parted with her sovereignty over the land in question, and insists that she had no right to resume it until after an inquest of office, or until after office found, according to the rule of the Common Law. We place our decision on the ground, that the State never intended, nor did not, by either of the Acts of 1825 or 1S26, part with her sovereignty over any portion of her territory until the same was actually granted, in the manner prescribed by those acts. If the State had once parted with her sovereignty over the land in question, by grant to one of hor citizens, and afterwards it became the property of an alien by purchase, or had escheated, the State could not have resumed her right of sovereignty over it until after office found in her favour. The Common Law rule applicable to the Crown in Great Britain, would apply to the State in this country. But the State is not attempting by the Act of 1843 to rc-invest herself with title to land with" which she has once parted, she is only exercising her sovereign authority to dispose of lands which originally belonged to her and which have never been granted to any body; a part of her eminent domain. In this view of the question, it was competent for the General Assembly to direct the manner in which the same should be disposed of. The second section of the Act of 1843 notifies all parties interested, who may be disposed to avail themselves of the privilege of partaking of the bounty of the State under the provisions of the several Land Lottery Acts, to come forward and obtain grants from the State, on or before tho first day of October, 1844. The third section of the act provides that after the first day of October, 1844, any citizen of this State, by paying into the treasury certain sums of money therein specified, shall be entitled to receive from the State, in his, her, or their name, a grant to any ungranted lot of land in any of the specified counties. Hotchkiss' Dig. 143. The lessor of the plaintiff obtained his grant under this act, which for tho reasons already given, is not in our judgment a violation of the constitution. It is however worthy of remark, that in this case the defendant is not the drawer of the lot of land, nor does the record disclose the fact that he derives his title through or from the drawer; consequently, the rights claimed for the drawer, or for persons claiming
From the view which we have already taken of this question, it will be perceived we hold the title to the lot of land in question was in the State, until granted under the authority of the act of 1843, on the 2d day of July, 1845, to the lessor of the plaintiff.