Helms v. May , 29 Ga. 121 ( 1859 )

— Stephens J.

By the Court.

delivering the opinion.

[1.] We all concur that the Court ought to have charged as requested, that adverse possession of Helms when May’s deed was made, was notice to May of Helms’ title.

[2.] A majority of the Court, (I being one of that majority,) also think that the Court ought to have given the other charge as requested; that the adverse possesion made May’s deed void. I place my opinion not at all upon the much controverted statute of 32 Henry VIII, but solely on the common law. It seems to be conceded by both Judge McDonald and Judge Benning, in their elaborate and very able opinions on the opposite side of this subject, and it certainly cannot be successfully disputed, that by the common law no valid title can be conveyed to a thing, when there is an obstacle in the way of the purchaser’s taking possession according to the tenor of the deed. A man cannot sell a lawsuit, nor the right of suing. Judge Blackstone, in his 4 Ble. Com. 135, says, this is “one main reason why a chose in action, or thing of which one hath the right but not the possession, is not assignable at common law; because no man should purchase any pretence to sue in another’s right.” Judges have often announced this principle from the Bench, and I repeat, that it seems not to be denied to be a principle ■of common law. But it is said first, that this principle of the common law was never in force in Georgia; and, second, that if ever in force, it has been repealed. I think the argument in answer to both these positions is very satisfactory. Without discussing the question, whether Georgia was settled as an uninhabited or as a conquered country, it certainly is a case where the settlers brought their own laws with them from England. In such a case, the rule, as stated by Judge Blackstone, and as accepted without dispute in this discussion, is that the settlers bring with them, “ all the English laws then in being.” Such is the rule. The exception is, such of those laws as are inapplicable or inconvenient to the new country. The principle that a sale is rendered void by an adverse possession at the time of making it, is within, the rule; can it be shown to be also within the exception ? Was that principle inapplicable or inconvenient to the settlement of Georgia? On the contrary, I think it had an applicability and a necessity here, far beyond what it had in England. I think the argument of Judge Benning to show that the 32 Henry VIII,m its full extent, was inapplicable and inconvenient, is unanswerable. But this common law principle is a quite different thing from that statute, in all those features of the statute upon which he animadverts so powerfully and so successfully. Thai statute, with its provision that no sale of land should be good unless the vendor or those under whom he claimed, had been in possession a whole year next before the sale, would indeed have been a fatal obstruction to the rapid population and settlement of the wild lands of Georgia.

But no such objection can be successfully made against the common law principle under consideration. It would have been abad thing indeed to have required purchasers to wait a whole year before they could buy, but it was an excellent good thing to require them to pass by all lands which they found already pre-occupied by an adverse holder, and push on to the great expanse of unoccupied, and therefore unproductive lands. Their obvious policy was not to encourage wrangling about settlements already made, but to stimulate the making of neio ones; not to waste their time in the delays of the law, but to avoid controversy, that they might thrive by industry in an uncontested field. What they needed was not lawsuits, not chances for lands at the end of a long litigation, but land — land into which they could enter immediately, go to work, make provisions and raise families. The foundation and reason of this common law principle,, was its morality. In addition to this reason, which lost none of its force by being transplanted from the old continent tos the new, it was a matter of great importance to the new set-tiers as a mere economy of time. Strange indeed and unwise would it have been, had (hese men cast aside a principle which, by preserving their time, and. their means from being wasted in tedious and unprofitable lawsuits, must have contributed so much to the rapid occupation and early development of their new country. So strange and so unwise that I do not believe it happened. Any reasoning which deprives those men of this part of the common law, takes away from them the whole body of it. I think, therefore it is quite clear, that this principle was n.ot excepted from that general body of the English laws which our ancestors imported into Georgia. But it is said it was repealed by the Registry Act. of 1755. That Act provides that all deeds duly recorded shall prevail over prior but unrecorded deeds; and it is claimed that the force and effect of this provision is that such recorded deeds shall be good, although made in the face of an adverse possession. This argument is bad because it proves too much. As well may you say these deeds shall be good, although made in the face of a fraud; or in the face oí the fact that the grantor was an idiot, and so incaple of contracting; or in face of the fact, that the grantor had no title, and so could not possibly convey one; or in face oí any of the many causes which have in all times been held as fatal to the validity of deeds. The argument is that all recorded deeds are to be good, without excepting those made in the face of an adverse possession. So are they all to be good, I reply, without excepting those which are procured by fraud, or those which are procured on an illegal cousidetau'on, oi from o.n igíoí or from a married woman * without excepting any of those causes which all mankind hold as blackening and avoiding all contracts whatever.

Now, my idea of that, statute is, that it did not dream óf conferring any new virtues upon recorded deeds nor of curing their defects, bat simply intended to disable unrecorded ones, and remove them from competition with recorded ones. It never could have been intended to say that registry should be a cure-all; to make a deed good which was against all the principles of the law. It was intended to leave the recorded deeds unaffected by the unrecorded ones, but not unaffected by law ; to leave them in just as good condition as if the older unrecorded deeds were not in existence, but certainly not in any better condition. The whole scope of this? Registry Act was to protect people against secret deeds. I do not think it was intended to make any deed good, nor to-make any bad, except for the single cause of failure to register. I therefore think that this common law principle was not repealed by the Registry Act of 1755, but was of force on the 14th May, 1775, and so was formally adopted by our adopting Act of 1784. JNor was it repealed by the Registry Act of 1785, nor any subsequent Registry Act, for these are all open to the very same remarks which I have on that of 1755. My conclusion is, that it now is, and always-has been the law of Georgia, imported with the common law of England that a sale of land made in the face of an adverse possession, is void.

Judgment reversed.