Doe ex dem. Cain v. Roe , 23 Ga. 82 ( 1857 )

The Court not being unanimous, the Judges delivered their opinions seriatim.

By the Court. —

McDonald J.,

delivering the opinion.

This was an ejectment brought in the Superior Court of Lee county, in favor of Doe, on the several demises of Raw-son Cain and J ames M. Morris, vs. Roe, casual ejector, and George W. C. Monroe, tenant in possession. On the trial, the plaintiff, in support of his case, introduced a copy grant from the State of Georgia to Rawson Cain for the premises sued for, dated 23d June, 1843, and a deed from Rawson Cain to James M, Morris, one of the lessors of the plaintiff, for the same land, dated 3d September, 1853, and recorded 6th October, 1S53. It was a warranty deed. The plaintiff then proved that the defendant was in possession at the time the suit was brought and the writ served, and had, at that time, been in possession about twelve or eighteen months.

The plaintiff here closed.

The defendant then introduced in evidence a warranty deed from David A. Vason to the defendant, for one-half of the land sued for, bearing date 25th November, 1850, and recorded January 7th, 1851; also a quit claim deed from William J. Parker, for the other half of the premises in dispute, dated 27th November, 1850, andrecorded 7th January, 1851-, He then introduced a deed from Rawson Cain, for the entire premises sued for, bearing date 25th January, 1854, and recorded 3d February, 1854. The defendant then proved that he entered into the possession of the lot of land sued for, in November or December of the year 1850, and has occupied and cultivated it ever since, and has cleared about one hundred and fifty acres. The land was worth for rent about two dollars per acre, and the clearing was worth the rent for two years. >

The jury found a verdict for the defendant. Whereupon the plaintiff’s counsel moved for a new trial on eleven grounds, and amongst them, that the Court refused to charge the Jury, as requested by plaintiff’s counsel in writing, that the statute of 32 Henry VIII is not of force in Georgia, was one.

The Court refused the new trial, overruling all the grounds taken therein, and the plaintiff’s counsel excepted. As this Court reverse the decision of the presiding Judge in the Court below, on the ground that he committed error in refusing to give the above .charge as requested, it will be unnecessary to advert to other grounds taken in the motion on which error is assigned.

The only question then, is, whether the statute of 32 Henry VIII, chap. 9, commonly called “ the Bill of Bracery and buying of titles,” enacted before the British government had a foothold on this continent, is of force in Georgia.

It is insisted by the counsel for defendant in error, that it having been adjudicated by this Court that the statute is of force here, it is no longer an open question, and cannot npw be considered. I know of no rule which precludes an appellate Court from reviewing its own decisions, and overruling them. It is a duty of such Court, of the highest obligation, if, by its decision, it has established as law, that which, it becomes satisfied, is not law, to annul its error, and to restore the stream of justice to its ancient and legitimate channel* There is no question of its power to do it, and there is as little question of the morality and justice which require it.

A supreme corrective judicial tribunal isvaluable only when it gives uniformity to law. This cannot be unless its decisions be based on correct legal principles. I must not be understood, however, ás attempting to shake the doctrine of stare decisis. For it is essential to the safety of every community that the law should be settled and understood; and when a decision is once deliberately made, it ought not to be disturbed but for the most cogent reasons, and upon a clear manifestation of error. 1 Kent’s Comm. 476. Chancellor Kent remarks, in the page following that quoted above, that he is not to be “ understood as pressing too strongly the stare decisis, when he recollects that there are one thousand cases to be pointed out in the English and American books of reports, which have been overrule^, doubted, or limited in their application.” It is probable,” he says, “ that the records of many of the Courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.”

I will now refer to some of the decisions claimed to have been made by this Court in reference to the statute of Henry VIII.

The first case is that of Pitts vs. Bullard, 3 Kelly, 17, in which the Court remarks that it is perhaps unnecessary to express any opinion as to the validity of the deed from Mc-Whorter to Bullard, which was the deed claimed to be void under that statute, it being admitted that Pitts was in adverse possession at the time of its execution. It was stated by the Court that the statute of Henry VIII was embraced in the digest of English statutes of force in the State of Georgia, and was in affirmance of the common law. The Court only stated the principle, and did not undertake to discuss it 5 and said hypothetically, if this be the law still, then the deed to Bullard transferred no right to him, as Pitts was, at the time in possession under sheriff's titles, claiming the land as his own. The circumstances of this case show that this point was not very deliberately considered, nor was it necessary, as it was decided on other grounds. From the case as stated, there was manifestly no adverse possession of the land at the time of the sale made' by McWhorter to Sims. He sold the land certainly as early as 1855, and gave his bond to Sims to make the title 5 for Sims, in 1835, transferred the bond to Bullard. Pitts did not enter into possession until December, 1837.

McWhorter, in compliance with his bond, executed a deed to Bullard, to whom it had been transferred, on the 18th of January, 1838. Itwas certainly not champerty or maintenance to execute a deed, when there was an adverse possession, in completion of a sale of the land, made when there was no such possession. In the case of Raymond vs. Jackson, cited in Jackson vs. Bull, 2 Caines case 301, itwas decided "that whenever it is intended to be shown that nothing passed by a grant, by reason that at the time, there w,as a possession in another, adverse to the grantor then the time to which the grant is to relate, is the time when the bargain for the sale was finally concluded between the parties; and that, consequently, any intermediate adverse possession, before the execution of the conveyance, (which is only the technical consummation or evidence of the grant) can never affect it.” Hence, I infer, that this point in the case was not considered with such deliberation as to preclude its re-examination by this Court, West vs. Holt, 20 Ga. Rep 70. This Court has made the same decision.

In the case of Harris vs. Cannon 6 Ga. Rep. 388, the Court make the remark, that a deed made by a person of full age, for tha purpose of avoiding a deed made by him when an infant, being void as against the act forbidding the sale of pretended titles, could not have that effect until some act of disaffirmance by the infant. This is the substance of it. The point now before us does not seem to have been made. The deed executed by the party when of age, in avoidance of his deed made when an infant, was not before the Jury. It was offered in evidence and rejected because its execution was not proven. The incidental remark of the Court as to the statute forbidding the sale of a pretended title, cannot be considered as an adjudication of the point, much less, can it be regarded as so solemn a judgment that it is not open to re-examination.

In Harrison vs. Adcock 8 Ga. Rep. 68, the point was directly before the Court, and without discussing it at all, was summarily disposed of by referring to the case of Harris vs. Cannon, just referred to, and of course cannot bé considered as of higher authority than that case. In Thompson vs Richards, 19 Ga. Rep. 594, my brother Lumpkin, delivering the opinion of the Court, said "it was straining pretty hard, perhaps, to adopt the 32 Henry, VIII, in a new country like this has been” and in Millsaps vs. Johnson 22 Ga. Rep. 105, he remarked that "it is exceedingly questionable whether any portion of this act, ought ever to have been adopted by our Courts, for the simple reason, that the policy in which this statute originated does not and never did exist here." Such are the decisions of this Court in regard to the Statutes of Henry the VIII, which we are called on to consider as barring further enquiry into it. A majority of this Court think that these decisions ought to be reviewed, and overruled as far as they recognize that statute as of force here, and the law finally and definitely settled by a solemn enquiry into and adjudication of the matter. We will proceed to that task.

It does not follow, that, because thes tatute of 32 Henry VIII, chapter 9, to prevent the buying and selling pretended rights or titles, is to be found in Schley’s digest, it is of force here. We can scarcely be said to have the assertion of the able and distinguished compiler, that it is of force in this State — and this Court ought to be well assured that it is of force, before it so pronounces it. If it be of force here, it is simply by virtueof our statute adopting certain of the statutes and common laws of England.

That statute adopted such of the statute and common laws of England, as were usually in force in the Province on the 14th May, 1776, so far as they are not contrary to the Constitution and form of Government established in this State, Cobb 721.

It is not extraordinary that in the absence of reports of judicial decisions of that time, the learned compiler encountered difficulty in ascertaining what English statutes, and what portions of the common law of England were of force in the province on the 14th of May, 1776. He alludes to his embarrassment, and informs us that he was relieved from it, by the suggestion of a learned friend, "that the colonists of America brought with them from England, as their birth-right, all the laws of the the mother country, which were capable of being so transferred, up to the period of the settlement of Georgia, therefore all the English statutes of a general nature must be considered to have been in force anterior to the revolution.” The compiler had already quoted from Blackstone, what I consider a more reliable rule, viz: that the colonists brought with them so much and such parts of the laws of England as were applicable to their new situation; such, for instance, as the general rules of inheritance. It is manifest from the terms of our act of revival, that it was by no means considered that all the statutes of England, of a general nature, were of force in Georgia, prior to the 14th of May 1776. Such of them as were usually in force before that time, were adopted, and none other, and they must not have been contrary to the Constitution, laws and form of Government established in this State. To give them force and effect here they must have been recognized and acted upon. The condition of things and circumstances of the people, must have called for their application prior to that time — and they must have been usually in force. "The growth of the colony and the improvement of society” must have actually called them into use. If it be said, that the perplexities which so embarrassed the able compiler of the English statutes of force here, as to prevent him, with his clear head and discriminating judgment, from arriving at positive certainty as to all the English statutes of force at the period, fixed in the law, must be encountered by any mind which undertakes the same retro-spection into the laws, for the purpose of ascertaining whether a particular English statute be of force, I can only reply, that it is true, and if they are so great as to prevent the mind from reaching a reliable conclusion, it ought to be considered that the statute is inoperative. If there be doubt on the subject, the judiciary has no power to remove it. It requires the more potent authority of the Legislature to do that. The judiciary must content itself with enquiring whether the particular statute, relied upon as affecting the rights of one of the parties before it, was usually of force in the province of Georgia on the 14th of May, 1776. If the practice of the Courts, the usages of the country, the dealings of men, the construction of contracts and the rules regulating the rights of property, have been uniform and in conformity with one of these ancient statutes, from the revolution to the present day, the conclusion is irresistible that the statute is in force. If there be no such conformity of conduct to the provisions of a statute ; if its authority and validity here have been generally disputed and contested, and its effective operation cannot be traced to the legal period that would give it force and effect, it is a safe rule to say that it cannot be regarded as law. If the exigencies of society demand such a statute, the Legislature can enact it. There can be no question, I apprehend, that certain of the English statutes of a general nature were of force in Georgia, while certain others were not, prior to the revolution, and that it was so settled by judicial decisions. In 1778, the Legislature passed an act declaring, among other things, that “all the laws of England, as well statute as common, and heretofore used and adopted in the Courts of law of the then province, now State of Georgia, and which were used and of force at the time of the revolution” were declared to be of force, except an act specially-mentioned. This was a temporary act, but I refer to it simply to show that it continued in force the statute and common law in England so far as they had been judicially declared to be applicable to the circumstances of the people and no further, Watkins’ Dig. 231, 232.

It was said in the argument that, because the compiler was appointed by the Legislature, and his work was reported upon, under its authority, by distinguished lawyers, the statutes found in the digest and sanctioned by the committee, are therefore binding on the people and the Courts, and their validity cannot now be questioned. This would be to give them the force and effect of re-enacted statutes, which could not have been the intention of the Legislature. The object unquestionably was to collect and embody in a single volume for convenient reference, those statutes of England which were supposed by an eminent jurist to have been adopted in this State. The Courts and the people are no more bound by them than they are by the digests of our own statutes, made by gentlemen of great legal ability, under the direct authority of the Legislature, or promulgated with the countenance of its subsequent approval. Laws found in such digests, are prima facie of force, nothing more. If at the time of the compilation of such a digest, some of the statutes embraced in it, are considered by the Courts as repealed, or superseded or otherwise inoperative, they must be declared so. The Court must examine and judge for itself, and consider the judgment of no compiler however pure and distinguished he maybe, as having the power and authority of a statute.

The provincial Courts, as I have shown, determined for themselves, what laws of England, as well statute as common, were of force in the colony. All these laws so determined to have been of force, which were not contrary to the constitution, laws and form of government established in this State, became the laws of this State, by the act of revival, and so continue, unless they have been repealed; or superseded by repugnant legislation. Was the statute of 34 Henry VIII, Chap. 9, among the English statutes adopted by the Colonial Courts, and was it usually in force during the existence, or at any period of the Colonial Government ? Tradition furnishes no evidence of it; nor has there been a continuous chain of judicial decisions from the era of the revolution, showing that it was a statute recognized by the Colonial Courts, applicable to the condition of the country and circumstances of the people of that time. The Court cannot decide that this statute was of force at that time, unless it have some sort of evidence of it.

I find none satisfactory to my mind and judgment. There is no evidence of its having been regarded as law by our Courts, from the year 1794 to the present time. The concessions by the Courts to its authority are of recent date. They do not go back to the beginning of the present century; and when I reach another head, under which I shall consider it, I expect to show that its provisions were disregarded during and immediately after the revolution. It must be conceded that if it were not usually of force in the colony on and prior to the 14th of May, 1776, it cannot become the law by the adoption of the Courts at this day, however changed our circumstances may be, and however applicable it may have become to our advanced and improved condition. To adopt it would be to enact it, and the Legislature alone can do that.

If it be granted that it is admissible for the Courts now, in the absence of proof of the kind to which I have alluded, to go back to the period antecedent to the 14th May, 1776, and in order to determine the question of an'English statute’s validity, conjecture the condition of the country and circumstances of the people then existing, and upon that supposititious state of things, form an opinion of the applicability of the statute thereto, and to adjudge that, because, in their opinion it ought to have been adopted, it was adopted and was usually in force, it must be inferred that the statute 32 Henry YIII, chap. 9, tested by that rule, was not among the adopted statutes of that day. The evil of buying of titles and pretended rights of persons not being in possession,” complained of in the preamble of the statute, could not have been considered a mischief or a wrong, in an unsettled country, where the owner could not occupy all of his immense tracts of land. It was the policy of the government to people the country and settle the lands. The English people owned not a foot of land on the Continent of America, at the time of the enactment of that statute, and the Parliament never extended its operation by express enactment, over the inhabitants of the country after the acquisition and settlement of territory here by England. The statute was passed for a densely inhabited country, where almost every acre of land which had been appropriated, was occupied by well defined boundaries, by a person claiming to be owner, or by tenants of an acknowledged proprietor. Colonial legislation furnishes strong evidence that it was never of force in Colonial Georgia.

By the first section of an act of 24th December, 1768, provision is made for recording deeds made and executed in the British Islands, or in any other of the Colonies of North America, or in Great Britain or Ireland, Watkins’ Digest 155. It is impossible that deeds made and executed abroad, could have been executed by livery of seisen ; and it is exceedingly improbable that it could have been known to the grantor whether there was an adverse possession or not, of land sold and conveyed by him. The fourth section of the same statute declares that no deed of feoffment, bargain and sale, etc. etc., of land or tenements shall be impeached or set aside in any Courts of law or equity for want of atornment or livery of seisin, or enrolment, or for that such conveyance hath been made by way of assignment or endorsement on any other deed of conveyance without other ceremony, nor for any other defect in the form or in the manner of the execution of any such deeds or conveyances or of the assignments or endorsements thereof, either in the first deed or in any of the mesne conveyances derived therefrom. No difficulty growing out of the adverse possession of the land at the time of the conveyance is alluded to in this statute. Deeds as they are represented in the act, were directed to be put on the record, which was, of itself, a statutory acknowledgment of their validity. As there is no evidence that the statute was ever of force in the Colony, and the inferences from Colonial legislation are against it, I cannot consent to a judgment that it is now the law of this State, and must determine the contrary.

But if the act was ever of force in Georgia, it was superseded, as I will now proceed to show, by the act of 1785, Cobb 164. By the act of 1760, Cobb 161, it was enacted that all conveyances of land and tenements should be made by deed of bargain and sale, or by deed of lease and release, or by deed of feoffment. Conveyances by the two former modes might be made without livery of seisin, but livery of seisin was necessary to the last mode of conveyance, to-wit: by feoffment. But whatever mode of conveyance was adopted, there must have been seisin in the grantor. If the conveyance be by bargain and sale, “there must be an estate in the bargainor of which he has the seisinWatkins on conveyances 238. By the second section of the statute 32 Henry VIII, chap. 9, which I am now considering, a person is prohibited from buying or selling lands or tenements, unless the person who shall bargain or sell the same, their ancestors, or they by whom they claim the same, have been in possesion of the same or of the reversion or the remainder thereof, or taken the rents or profits thereof by the space of one whole year next before the sale or bargain, etc. Hence, by that statute it was essential to the validity of the sale, that there should have been seisin in him who made the sale. Prior to the year 1785, deeds of bargain and sale, and other deeds of feoffment or conveyance had been made, where there had been no livery and seisin* and which had not been enrolled. The Legislature, on the 22d of February of that year, passed an act, the first section of which declares that no deed of feoffment, bargain and sale, and deed of gift or other conveyances of lands or tenements whatsoever, theretofore made, should be impeached or set aside, in any Courts of law or equity for want of form, or livery and seisin, or enrolment, etc., etc. The legislature did not consider them illegal or invalid, and therefore did not legalize them. It rather considered them legal and valid, as having been executed in .conformity with the usages and practices of the times, and prohibited the Courts from declaring them otherwise. The second section of the act declares what shall be a good deed of conveyance, and it prescribes all the requisite of such deed, and they are :

1st. It shall be bona fide.

2d. A valuable consideration must be paid.

3d. It must be proved in the manner directed.

4th. It must be registered.

A deed thus executed is declared to be good and vaild in law and equity. Seisin in the vendor is not required; the deed is good and valid in law and equity without. Hence he need not have the possession required by the statute of Henry. The sale must be bona fide. The vendor must believe that he has the title and owns the land, and that he sells the real title, whether there be an adverse possession or not. It cannot be bona fide if the sale involve the offence of maintenance ; and that offence is not involved, if the vendor sell the true title or if he, in good faith, believes he is selling such title and the sale be not made with the intent to get up a law suit, although a suit may be necessary to recover the land. “ It is a high offence at common law, as plainly tending to oppression, for a man to buy, at an under rate, a doubtful title known to be disputed, to the intent that the buyer may carry on the suit, which the seller doth not think it worth his while to do; and it seems not to be material, whether the title be good or bad, or whether the seller were in possession or not, unless the possession were lawful and uncontested.” Bacon, Ab. Maintenance, Letter E. The statute of 1785, protects the true owner of land in the sale thereof, if the sale be made bona fide and for a valuable consideration, whether there be an adverse possession ornot, and so far as the common law comes in conflict with it, the •statute controls. Our land titles are of recent origin, and are easily traced, and a case can hardly arise in that part of the State in which the land was partitioned by lottery, where there is a possession adverse to the right of the true owner, hut the title of the adverse claimant originated either in fraud or forgeiy; and, in the older settled parts of the State, disputes respecting land titles usually grow out of interfering surveys. But be their origin what it may, the positive enactment of the act of 1785, cannot be reconciled with the harsh provisions of the statute of Henry Sth, if that statute had been previously of force, and, when they come in conflict, rhe latter must give way. If the Legislature were to enact a statute making it a crime and cause of forfeiture of his land, for the rightful owner to sell and convey it, when another person -was in possession of it claiming title adversely, whether that fact were known to him or not, it would shock the common sense and moral feeling of the entire country. Yet such is the statute of Henry VIII.

It is unnecessary to consider whether the statute of Henry VIII under consideration, was in affirmance of the common law, for the English statute and common laws, both fall before the act of 1785, which requires neither seisin in the vendor, nor livery of seisin to a purchaser to make a valid conveyance. I think therefore that the refusal of the Court below to give the charge to the jury requested by the plaintiff's counsel, that the statute of 32 Henry VIII, chap. 9, is not of force in this State, was erroneous, and that his judgment must therefore be reversed.

Judgment reversed.