Johnson v. Jones , 87 Ga. 85 ( 1891 )

Lumpkin, Justice.

1. An act was approved October 15th, 1885 (Acts of 1884-5, pp. 56, 57), the title of which declared that it was an act to amend section 4185 of the code by adding after the words “four months” therein, the following words: “which order to perfect service may be granted by the judge in vacation.” This is all the amending act, by its title, proposed to do to the section mentioned, viz. simply to insert the quoted words in the section at the place designated. In the body of the act it is enacted that these words shall be so added, and the act then proceeds to assert that the original section, when so amended, shall read a certain way. The difficulty about it is, that the section, when so amended, does not read that way, but on the contrary, the words, “twice a month for two months,” are substituted for the words, “once a month for four months,” occurring in the section. No hint is given, either in the title of the act or in the enacting part thereof, that this change or substitution will be made. Indeed, the act does not anywhere directly declare that such change • shall be made; it only incorrectly says that such a change shall result from introducing certain words into the section. Therefore, as the title expresses distinctly, explicitly and unequivocally the precise words which shall be added to the section to be amended, and the body of the act, in the indirect manner indicated, makes another and entirely distinct and important change in the section, it follows inevitably that the act “contains matter different from what is expressed in the title thereof,” and this the constitution plainly forbids. Code, §5067. An examination of the act, in connection with this section of the code, will readily disclose the defect herein discussed.

2. The only question disclosed by the record which can be of any consequence to the plaintiffs in error is, whether or not a deed having no witnesses'is good between the parties thereto, and conveys title from the grantor to the grantee. This question has been virtually settled by this court in the cases of Downs v. Yonge, 17 Ga. 295, and Gardner, Dexter & Co. v. Moore, Trimble & Co., 51 Ga. 268. In the first ease it was held that a deed with only one witness was good between the parties; and in the second, that a mortgage of real estate with only one witness was likewise good. The reasoning in those cases is conclusive that a deed or mortgage of realty without witnesses would be good as between the parties themselves, or those claiming under them as mere volunteers. On the same line, it was held in Marable v. Mayer, Son & Co., 78 Ga. 60, that a mortgage on personalty was good, as between the original parties, without any witness at all. If the deed in the case before us, which had no witnesses, was valid and binding to the extent stated, it follows, as the facts of this case show, that the plaintiffs in error have no interest whatever in the property covered thereby.

3. It appears, however, that they were never legally served. Being non-residents of the State, service was attempted by publication twice a month for two months, instead of once a month for four months, as required by section 4185 of the code. It is obvious that service was sought to be perfected in this manner under the impression that the act mentioned in the first head-note was constitutional. This, we have shown, is not the case, and therefore the service amounted to nothing. The plaintiffs in error filed in the court below their plea to the jurisdiction for want of legal service, which plea the court overruled, and we are therefore constrained to reverse the judgment on this ground. The facts disclosed on the trial of the case cannot possibly be changed upon another hearing, and these parties could accomplish nothing even if they were legally served. Judgment reversed.