| Ga. | Jun 15, 1862
Jenkins, J., delivering the opinion.
The questions raised by this bill of exceptions require a construction of the Act of 17th February, 1854, pamphlet. 75, entitled, “ An Act to secure a preference to persons in possession, in applications for grants under the laws pertaining to head rights.” It must be conceded that this Act is
This case came to the Superior Court on appeal from magistrates sitting as a Land-Court, having_original jurisdiction. From th,e papers transmitted to the appellate Court, it does not appear that anterior to the issuing of the warrant of survey, by the Land Court, the sheriff had either made a return of notice served upon any person in possession of the premises, or certified that there was no person other than the applicant in possession.” The case had been initiated and prosecuted thus far, as if the Act of 17th February, 1854, had never been passed; and the caveator, in the Superior Court, objected to the introduction of the warrant of survey in evidence, because there had been no prior return or certificate by the sheriff, as provided in said Act. The applicant met the objection: 1. By denying the necessity of such return or certificate. 2. By insisting that, if necessary, the appellate Court should presume that the one or the other had been given — should presume that in the Court of original jurisdiction all things had been “rite acta.” 3. By offering parol evidence to the Court that there was no person, other than the applicant, in possession, and that the caveator had received verbal notice of the application. These replies were held insufficient by the Court below, and the objection of the caveator sustained.
The first section, after reaffirming the preference given by the Act of 1777, provides that “before any such warrant of survey shall be issued, ten days’ notice shall be served upon the person in possession of the intended application, describing the premises to be surveyed, and shall be returned as having been served by the sheriff of the county.”
This notice, it will be observed, is a condition precedent to the issuing of the warrant of survey, and undoubtedly is to be required only where there is a person, other than the applicant, in possession, for in no other case could such notice possibly be given. But how is the Land Court to know whether there be or be not such adverse possession as would render notice necessary ?
The second section, which (by its terms) is directory to the Secretary of State, provides that he “ shall not attach the seal of the State to any grant under head rights, until the applicant shall furnish to him the certificate of the sheriff of the county where the land lies, stating that the notice herein required, (i. e. the notice in terms of the first section,) has been given, or that no person, other than the applicant for a grant, is in possession of the premises proposed to be granted.” Construing the first and second sections together, they will be found to cover the whole ground and remove the mischief. If there be a party, other than the applicant, in possession, the sheriff’s certificate of the service of notice makes it clear that the opportunity has been afforded him of interposing and asserting the preference given him by law. If there be no person, other than the applicant, in possession, the certificate of the sheriff to that effect makes it equally clear, that so far as known to that officer of the law, no impediment of
The argument, that by the letter of the second section, the certificate that there is no adverse possession, is intended for the guidance of the Secretary of State, and not of the Land Court, is a precaution against the wrongful issue of grant, not of a warrant of survey, is of little force. The certificate of notice served is manifestly intended as a guide to both those authorities, and as in cases which preclude it, (there being no party upon whom notice can be served,) the other certificate is ultimately required as its alternative, a reasonable construction would make the latter also a guide to the Land Court, as well as to the Secretary of State. The warrant of survey, and the survey under it, are alike valueless to the applicant without a grant. Hid then the Legislature intend that the applicant should pass through the Land Court, should have a survey and landmarks made upon the premises, the attestation of chain carriers, the grant formally extended, made ready for the great seal of the State, and then fail for the want of the sheriff’s certificate? or did they intend that this certificate, when necessary, should be procured and made part of the documentary proceedings in limine ? “ Qwi hceret in litera, haeret in eortice.”
This construction, we think, gives to the remedy a symmetry and efficacy which would otherwise be wanting.
The majority of the Court are, therefore, of opinion that there was no error in the rulings of the Court below.
Let the judgment be affirmed. „