104 Ga. 335 | Ga. | 1898
The procedure which obtained in this class of cases was thus explained by Judge Lumpkin in Walker v. Wells, 17 Ga. 550-551: “In England, grants are issued by the Lord Chancellor, after affixing the great seal of the United Kingdom to them; and a record is made of them in the Court of Chancery. Consequently, when it is proposed, there, to vacate a grant, the writ of scire facias issues from the Common Law side of the Court of Chancery, where the grant is enrolled, and is there adjudicated unless the pleadings terminate in an issue or issues of fact. If they do, the pleadings are made up in the Rolls office, and the record sent into the King’s Bench, to be tried by a jury, where, on a verdict had, the judgment is rendered.” It is obvious that this mode of procedure is out of the question in this State. In the first place, we have no Lord Chancellor, nor any officer exercising the peculiar functions which in England devolved upon that high official, and we have long since departed from the practice of instituting actions in the manner which formerly prevailed in that country. Besides, as is pointed out by Judge Lumpkin, “in Georgia, grants are enrolled in the office of the secretary of the State, which is an establishment not only distinct from any of the courts of this State, but belonging to another and independent branch of the government; and as “a scire facias is always founded upon a record, and issues from and is made returnable to the court where the record is kept,” it is not to be wondered at that he
It may, therefore, be safely asserted that there can no longer be any room for doubt that the State can, in its own name and
That a subject can not himself maintain an action to revoke a grant issued by a sovereign power, nor arbitrarily assume to embark it into litigation by attempting to make an unauthorized use of its name, was settled by this court in Parker v. Hughes, 25 Ga. 374, wherein it was held that: “A grant from the State can not be set aside in any proceeding to which the State is not a party,” and the “ State, by the Governor, can not he made a party complainant without the Governor’s consent.” There, an action was instituted by Parker in his own
The law as announced in 25 Ga., cited supra, and which we are now following, was not changed by section 2332 of the first code (Civil Code, § 3219); for there is not one word in that section conferring upon a private citizen the right to proceed by scire facias to set aside or revoke a grant. That section simply prescribes the form of remedy, and can not be held to dispense with the necessity of having the State as a party to a proceeding of this nature.
Upon a casual glance, the decision in Dart v. Orme, 41 Ga. 376, may seem to be out of harmony with that rendered in Par-
Even had the point been directly made in that case that the State should have been made a party plaintiff, we think the decision should have been the same as that rendered. The purpose of the action was clearly not to revoke a grant made by the State on the ground of a fraud perpetrated upon it, but, independently of any question concerning the good faith of the grantees in procuring the grant from the State, to invoke the aid of a court of equity in order to have the same canceled as a cloud upon the complainants’ title. In other words, they alleged themselves to be the owners of the paramount title'; that the grant was being injuriously set up in opposition to their vested rights in the premises, and should therefore be delivered up and canceled. To remove a cloud upon title is peculiarly and exclusively within the province of a court of equity, the remedy thus afforded being one unknown to a court of law, the practice in which makes no provision for enjoining a threatened injury, but merely provides for restitution after the mischief has been done. In a proceeding to remove an alleged cloud upon title, naturally the sole inquiry is whether, as between the complainant and the defendant, the latter is equitably entitled to retain in his possession the muniments of title sought to be canceled, without regard to the good faith with which he obtained the same. It follows, of course, that in such an investigation the grantor under whom the defendant claims is by mo means a necessary and indispensable party, though, in a given instance, as where a grantor warrants the title, he may very properly be brought into court to defend the action. It would therefore seem that in Dart’s case the most eminently proper and expedient, if not the sole, remedy open to the complainants was pursued. Independently of the right of the State to enter proceedings to revoke its grant, they had a separate
More in this connection need not now be said. As a purely practical question, it is entirely immaterial, so far as the present controversy is concerned, whether the decision in Darfs case is or is not in conflict with that rendered in the case of Parker v. Hughes, supra; for the case last mentioned is the older of the two, and is therefore, under the terms of our statute, to be followed as the true law, no motion for leave to review the decision therein rendered having been made when the case now before us came on for argument. See Acts 1858, p. 74, and Lucas v. Lucas, 30 Ga. 202, from which it seems
Judgment affirmed.