Sewell v. Holland, 61 Ga. 608

Sewell v. Holland

61 Ga. 608 | Ga. | 1878

Bleckley, Jristice.

1. There is no dispute that Willis and Young owned the land as tenants in common, that Willis bargained it in writing to Sewell, who paid at least a part of the purchase money, and went into possession, claiming the whole of it under this purchase ; that Willis did not attempt to sell his interest only, but attempted to sell to Sewell the interest of Young also, holding himself out as authorized by Young so to do; and that Young’s interest was afterwards formally conveyed to Holland. It is insisted that if Sewell had actual possession and claimed the whole land, especially if he had paid all the purchase money, Young was ousted, whether he had ever authorized the sale of his interest or not, or whether he ever ratified the sale or not; and tha , though Sewell may not in fact have acquired Young’s interest, yet, as he claimed to have acquired it, he did not become a tenant in common with him, and therefore the remedy by partition cannot be available to Holland, Young’s vendee. But we think that, though Sewell may have believed that he owned the whole land, still, if he in fact owned no more than the interest of Willis, he would occupy to Young the relation which Willis previously occupied ; that is, the two would be tenants in common. Of course, Young’s subsequent vendee would take Young’s place in that relation ; and so, if Young neither authorized nor ratified the sale by Willis to Sewell, Holland and Sewell became tenants in common. See 26 Ga., 515 ; 52 Ib., 637 ; 56 Ib., 659.

*6142. If Young either authorized or ratified the sale by Willis, he could not afterwards and whilst Sewell was in possession, claiming the whole land, convey a better title to Holland or to Holland’s attorney than he himself then had. Sewell’s possession would so protect him that Young could convey no title to another which he himself could not assert against Sewell, possession being notice to all the world, if not of what the possessor actually claims, at least of what he is entitled to claim rightfully. Holland can stand in Young’s shoes, but not in a new and better pair. This is so, whether Sewell has paid all the purchase money or not. Holland can have partition, if Young could have it were the conveyances under which Holland now claims through Young out of the question ; otherwise, he cannot have it. Sewell’s possession prevented Young from placing Holland any higher than the exact position in which Young stood.

3. It matters not that Holland may have acquired title in whole or in part by compounding a felony. Sewell is not interested in that question. No such consideration appears on the face of either of the deeds. The deeds are executed contracts, and Young, the maker, is not complaining of them. Sewell has no right to volunteer a complaint for him. Indeed, it is not apparent how even Young could avoid them were he so disposed. It is enough for all Sew-ell’s rights, legal or equitable, that he is allowed to stand in this contest just as if he were resisting Young.

What we have ruled will be found to comprehend the whole substance of the case, except the matters of fact which are for the jury.

Judgment reversed.