Ingram v. Little

14 Ga. 173 | Ga. | 1853

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The great question in this case is upon the validity nf the deed. It ivas duly signed, sealed, attested and written out, except as to the name of the feoffee; the amount of the purchase-money to be paid for the land; and some other things not material. In this condition, it was taken by Mr. Anderson to Milledgeville, and there, in the presence of the purchaser, Mr. Little, he and the brother of the grantor, acting under a parol authority, filled out the blanks and delivered it. Subsequently, Adair, the feoffor, acknowledged in presence of a witness sworn on the trial, that this document was his deed. Oúr opinion is, that as a muniment of title the deed is void, because the execution was consummated, by filling the blanks by an agent in the absence of the feoffor, acting by authority in parol. f We put our decision upon authority, conceding that the books in England and in this country are in “ distressing” conflict, and with some misgiving whether reason and common sense do not condemn it. This is, however, just the kind of case, in which it is safest to be guided by the weight of authority. The rule, although a technical one, is single, clear, and easy of observance. If abrogated, the title to property might be left too much to the mistakes of memory, or to the connptions of humanity. Under doubt, Ch. J. Marshall, with all his disrelish of technicalities, felt constrained to decide in the same way. We can well afford to follow/ -when such a lawyer leads. I shall not go minutely into *a'discussion of the authorities. I shall only indicate the great land-marlcs of the question, and lay down the doctrine to which they guide. That doctrine is, that an instrument which when executed is incapable of having any operation and is no deed, cannot afterwards become a deed by being completed and delivered by a stranger, in the absence 6f the party who executed it, unauthorized by an instrument under seal.

[2.] The deed in this case,-before its completion and deliv-j ery was inoperative, because made to no person. We say thatj it could not become a valid'deed by filling- the blank with the name of W. G. Little by Anderson, in the absence of Adair., who made it, without authority-undor eal'from him. ' The only case in England which sustains the contrary, in a like state of facts, is Tereira vs. Evans decided by Lord Mansfield, and cited in 1 Anstruther 228. The books furnish no satisfactory report of it. It is questioned by Mr. Preston, in his edition of Shepherd’s Touchstone, and in Hibblethwaite vs. McMorine, is declared not to be law and overruled. (Shepherd’s Touchstone by Preston, 68. 6 Mason & Wels 213, 214.) The old writers are with this Court in Hibblethwaite vs. McMorine.— (So also Markham vs. Gonaston, 2 Crokes R. 676. Moore T. 547. Com. Pig. Fait A. 1. Weeks vs. Maillardet, 14 Fast. 568. Powell vs. Duff, 3 Camp 181. Buller’s N. P. 167.) To the same effect in the United States see Boyd vs. Boyd 2 N. D. McCord, 125. Perminter vs. Daniel et al. 1 Hill 267. Gilbert vs. Anthony, 1 Yerg. 69. Byers vs. McClanchan, 6 Grill & I. 250. Ayres vs. Harness, 1 Ohio, 368. McKee vs. Hicks, 2 Dev. 379., Harrison vs. Tiernans, 4 Rand 177.) See American authorities contra in note to Hibblethwaite vs. McMorine, 6 M. & W. 215, 216. In Hibblethwaite vs. McMorine, Park B. revicwpTereira vs. Fvans, and shows what are and are not cases distinguishable from that.— The case of Hibblethwaite vs. McMorine was decided in 1840.

We think it clear that the early and latest cases in England hold an authority under seal necessary. We cannot err, therefore, in holding with them. We cannot doubt as to what is the settled rule of the C. Law, and that is obligatory upon this Court. This question w'as brought before Ch. J. Marshall in the U. States vs. Nelson & Myers, and he ruled apparently with some doubt as to the reasonableness of his judgment, upon authority, in favor of the doctrine as I have stated it. He invoked an appeal by expressing the opinion that he would be reversed by the Supreme Court, U. S., but no appeal was taken. (2 Brockenhorough, 64.) That immaterial blanks in :a deed may be filled, upon parol authority, without invalidating fit, we do not doubt. Our judgment extends only to the case •made in this record. The Court therefore erred in admitting this deed as a muniment of title; but ayo do not send the ca le back on that error, because it Avas admissible to shoiv color of title under it] and as the plaintiff belovr must, in our judgment, recover on his Statutory title, the cause ought not to go back. Although inadmissible to support title, Ave hold as the presiding -Judge held, that it is admissible as color of title.

[3.] The exception to the testimony of Tcnnison Avas that it Ayas illegal. An exception so general, brings no question before the presiding Judge, or before this Court. Neither the Bill of Exceptions nor the assignment, specifies the ground of illegality. We do not know Avhy it Avas claimed to be illegal, nor upon what principle it AYas admitted. It does not appear, but that if the objection now made to it in argument had been made in the Court beloAY, it would have been sustained.

Our organic Law requires the grounds of exception to be specified, that the opposing counsel may be notified, and this Court informed of Avhat is claimed to be error. If the exception had been Avell taken, AYe should hold the testimony admissible.— When the statements of Thomas Little were made, the title of W. G: Little had not accrued. At that time Thomas Little claimed no title, and was in possession therefore as tenant to the true owner. His admissions that he had no title, were admissible to explain the character of his possession, and for the same reason his admissions as to his tenancy, under W. J. Little, after he bought the land, were admissable.

[4.] The Court did not err in rejecting the testimony of Hobbs and Evans, who were introduced to prove the sayings of Thomas Little, to the effect that W. G. Little bought the land for him at his request, and that he was the owner. The plaintiff below, having proven, that Thomas Little was in possession as tenant of W. G. Little; Thomas Little would not be permitted to deny the title of bis landlord. His statements as to his own title, certainly would not be evidence against his landlord, without bringing home to him notice of them. With such notice they might go to show a repudiation of his tenancy and a setting up of adverse possession and claim.

The doctrine of registry and notice has no application to this case, and the Court charged correctly as to fraud.

Let the judgment of the Court below he affirmed.