Sykes v. Doe ex dem. McRory, 10 Ga. 465

Sykes v. Doe ex dem. McRory

10 Ga. 465 | Ga. | 1851

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] In Hilliard vs. Connelly, this Court held that the Act of 1837, authorizing and requiring the Governor and the Secretary of State, and the Comptroller General, to correct errors in grants, and to issue alias grants, was unconstitutional, so far as the rights of third persons, other than the State and the original grantee, were concerned. 7 Geo. R. 172.

The Executive order tendered in evidence on the trial, correcting the supposed mistake in the name of the grantee, bears date in 1839, while the record shows that two years previous to that time, to wit: in 1837, Wilkinson and Fowler, two of the immediate grantors of Sykes, the tenant in possession, had acquired a title to the land in dispute from Freeland, the attorney in fact of Rachael McCrary, in whose name the grant originally issued. The order therefore, of the Executive, altering the grant, was clearly inoperative and void, and inadmissible in evidence, the rights of third persons other than the original grantee having attached. The Judiciary department alone of the State Government was clothed with authority to investigate and determine the antagonistic claims of the contending parties.

[2.] But it is argued in behalf of the defendant in error, that this is a case of latent ambiguity, and that conceding the invalidity of the Executive order, that still it was competent, by parol proof on the trial of the ejectment, to ascertain the true grantee and to show that Rachel McRory, under whom the plaintiff claims, and not Rachel McCrary, from whom the defendant derives title, was the right person to whom the grant should have issued, and there is authority to sustain this position. Cheney’s *471case, 5 Co. 68. Co. Litt. 3 a. Ulrich vs. Litchfield, 2 Ark. 373. Parsons vs. Parsons, 1 Ves. Jr. 266. Thomas vs. Thomas, 6 Term Rep. 671. Jackson vs. Stanley, 10 Johns. R. 132. Jackson vs. Cody, 9 Cowen, 140.

But we think the better practice is, that a grant issued by mistake should only be avoided by sci.fa. or other proceedings for that purpose in Chancery; and that it cannot be impeached in this collateral way at Law, by showing that the grantee intended, was a different person from the one mentioned in the grant. 12 Johns. R. 77. 7 Geo. R. 172. 2 T. R. 684. 1 Hen. & Munf. 303. 6 Munf. 238. 9 Cranch, 87, 94. 5 Wheat. 293. 13 Peters, 436.

Let the judgment below, for these reasons, be reversed.