Doe ex dem. Vickery v. Roe

| Ga. | Nov 15, 1858

)By the Court.

Benning, J.

delivering the opinion.

Ought the Court to have granted the motion for a new trial?

I shall begin with the fifth ground of the motion.

That ground contained three specifications. Of these, the first was abandoned, as having been taken by mistake.

The second was, that the Clerk’s certificate was, that the copy of Bull’s deed to Turman, was a copy of the deed itself, and not a transcript from the record of deeds. The certificate was in this form, “ that the within and foregoing writing is a true copy of a deed made by Isaac Bull, to George Turman, on record, in my office, in Book R. R. p. 75.”

In the loose language of common parlance, it is not unusual to call the record of the deed, the deed itself. An applicant to the Clerk, for a copy from the record, will say, “ give me a copy of such a deed from the record•” meaning, and being understood to mean, a copy of the record of that deed.

[1.] The Court below thought that, all the circumstances considered, the Clerk used the word, “ deed,” in this sense of the record of a deed. And we. think so, too.

And even if the deed, and not the record of it, had been what was meant, I myself should still have thought the copy admissible. Even in that case, the copy would, it is to be presumed, have been “ a copy” or “ transcript” of a “ document or paper of file,” in the office of the Clerk — oí file there, for record ; and the Act of 1819, (Pr. Dig. 215,) says, that the certificate of any public officer, “shall give sufficient validity to any copy or transcript of any record, document or paper of file, in the respective offices under their control,” “ to admit the same as evidence.”

The third specification was, as follows: “That the certificate of the copy deed was not admissible in evidence because of the interlineations therein, the same not being accounted for, nor explained.

[2.] The interlineations were in the same ink, and the same hand, with the writing interlined. The Court below concluded, therefore, that the interlineations did not vitiate the certificate, and we think that this was a proper conclusion. In such a case, it is to be presumed, that the interlineations or erasures are rightfully made.

We regard then, the .fifth ground of the motion as insufficient.

The sixth ground differs in no essential particular, from this third specification of the fifth ground.

The. seventh ground was the charge, “ that if there was possession of the land for seven years, uninterruptedly, by any person, after the title had once passed out of the State, under color of title and claim of right, prior to” the “ suit, the jury” should “ find for the defendant.”

The eighth ground was the same in substance as this seventh.

And we think it true, that there was error in this charge.

[3.] 1st. We think, that even if the title to land is out of the State, yet it does not thence follow, that in every case, seven years adverse possession, tinder color of title and claim of right, gives a title to the occupant. He may, at or after the seven years, abandon the land. If he does so, the previous possession counts for nothing. The abandonment is an admission, that there is a better outstanding title, and, that the possession was, while it lasted, really, in subordination to that title. It is saying, that the mistake, fraud, or something insufficient, was the cause of the adverse possession and claim of right.

2dly. But it maybe, that the title to this land was in the State at the time of the existence of the two possessions proved. And if it was, those possessions could count for nothing, as the statute of limitations does not run against the State.

It does not follow, that because title to land, has once passed out of the State, it can never return into the State. It may revert to the State by escheat, on proper inquest of office. And if it does so revert, and the inquest be of the kind provided by the common law, the effect will be, to cause the title to return into the State, and the land to resume its old condition — the condition, it had before it was granted. (3 Black. Com. 258.) Being in this condition, it will be subject to be re-granted, in the same way in which, it was granted; as, under the Head Rights Laws, if the first grant was under those laws; and, until so re-granted, it will belong to the State. Consequently, until so re-granted, it will be exempt from the statute of limitations, for that statute does not run against the State.

If, however, the inquest of office be of the kind furnished by the Escheat Act of 1801, the effect will be different. That Act requires the escheator, to sell and convey the escheated land, in the course of some months after the termination oí the inquest. When, therefore, the inquest is of this kind, the title, though returning into the State,, abides there but a short time; it soon passes out again, through the escheator, into whoever may become the purchaser of the land, at his sale of the land. . '

And the title having thus passed out of the State, the land will cease to be subject to be re-granted by the State, whether by the Head Rights Laws, or any other, there being no law authorizing the issue of a grant for land to which the State has no title; and the land having got into private hands, will become subject to be affected by the statute of limitations.

It remains to apply what has thus been said, to the case in hand.

3d. A grant was issued to Lamentation Braswell, in 1788. He has never been heard of since. Nor- does it appear, that he made any will, or, left any heir. It is, therefore, to be presumed, that, subsequently, to the grant, he died, and died without a will, or an heir; and, therefore, that the land es-cheated to the State, on due inquest of office. And it must be true that this inquest was one taken before the Escheat Act of 1801, or, onetaken afterthat Act. If one taken before, then, it must have been an inquest at common law, and must, therefore, have had the effect, to put the title into the State, there to remain until the issuing of the grant to Vickery, in 1854, when it passed out of the State a second time, and entered into Vickery. Consequently, if the inquest was one taken prior to the Escheat Act of 1801, then it must be true; 1st, that the title was in the State at the times of the existence of the possessions proved, and, therefore, that such possessions could not affect it; 2dly, that the grant to Vickery, was good, and conveyed the title into him.

[4.] On the other hand, if the inquest was one taken after the Act of 1801, it is to be presumed, that it was an inquest pursuing that Act; and such an inquest requiring as it would, the land to be sold and conveyed by the escheator, would cause the land, after remaining, a short time, the property of the State, to pass to the person to whom, the escheator should sell and convey it. Consequently, if the inquest was taken after the Act of 1801, it is to be presumed, that the title had, through the escheator’s sale, passed out of the State, before the time of the grant to Vickery; and therefore, that that grant conveyed no title to him.

We think, then, that the Court, instead of charging the jury as it did, should rather have charged them thus:

1st! That even although a person may, under color of title and claim of right, hold another’s land for seven years adversely, yet if he then abandons the land he has no right to claim benefit under the statute of limitations.

2d. That, although, it might be true, that a grant had been made to Lamentation Braswell in 1788, yet it did not thence follow, that the jury would, of necessity, have to conclude, that the grant made by the State to Vickery, in 1854, was void.

On the contrary, that if neither Braswell, nor any heir of his, nor any will made by him, had ever been heard of, subsequently to the date of his grant, the jury would be authorized if not required, to presume, that the land had by escheat, on due inquest, reverted to the State.

That, making this presumption, they must then determine whether the time of the inquest, was before, or after the Es-cheat Act of 1801. That if they determined that it was before, they would be bound to conclude, that the inquest was in the common law mode, and therefore, that it had had the effect, to make the land revert to the State, and remain the property of the State until the time of the grant in 1854, to Vickery, and consequently would be bound to conclude, that the land had, by that grant, passed to Vickery.

But, that, if they determined, that the time of the inquest was subsequent to this Escheat Act, they would be bound to conclude, that the inquest was one according to the mode prescribed by that Act, and therefore to conclude that though the land reverted to the State, yet, that it did so,merely to pass again from the State to some purchaser at a sale of the escheator, made according to the provisions of the Act; and consequently, that they would be bound to conclude, that there was no title in the State, at tbe time of the grant to Vickery, in 1854 ; and therefore, that no title passed to him by that grant.

The ninth and tenth grounds relate to the conduct of a juror, and it is needless to determine them, as the determination of the two groundss first disposed of, makes a new trial necessary, It is not likely, that such conduct will be imitated. It is equally needless to notice the first four grounds.

New trial granted.