Robert v. Palmer , 14 Ga. 349 ( 1853 )

JBy the Court.

Lumpkin, J.

delivering the opinion.

£1.] Was the warrant valid, setting forth aB it did, no other deseription of the land on which it was intended to be located, than that it contained “ Fifty acres in the county of Wilkes” ? We think not. By the act of 1783 (Cobb’s Digest 667) it is required that the warrant to survey land under Head-rights shall “ Describe the buttings and boundings of the land as particularly as may be.” And again, by the same Statute, it is made the duty of the Clerk “ To keep a regular book of entries of all applications made and warrants issued, specifying the huttings and boundings of the lands contained in the same.” (Ibid 668.) We hold then, that the objection to the sufficiency of the warrant was well taken and properly sustained by the Court. We would not be understood as holding that this uncertainty in the warrant would vitiate a grant, which either sets out upon its face a description of the land, or refers to the plat for that purpose.

[2.] Was the defect amendable ? Most clearly not. The issuing of the warrant by the Land Court was like the suing out of an attachment before a magistrate, an ex parte preliminary proceeding, and constitutes no part of the pleadings in the cause; and consequently does not fall within any of the Statutes of jeofails or amendatory acts passed by the Legislature of this State.

Nor is the excuse rendered for the irregularity of the warrant available, namely: that the applicant requested the Land Court to specify in the warrant the boundaries of the land, which they refused to do. Mr. Roberts could by mandamus or otherwise, have compelled the Land Court to grant a legal warrant. He must be presumed, therefore, to have taken voluntarily the one which was issued.

Much contrariety of opinion seems to exist as to the procedure for the trial of caveats, against the passing of grants for land, under Head-rights in this State.

Originally, under the Act of 1783, a trial was had in the Land Court by a jury of twelve men, being free-holders, who were duly sworn to try the matter according to Law and Equity, and give their verdict thereon, which was final and conclusive. (Cobb’s Digest 666.)

By the 10th section (erroneously cited as the ninth in all the Digests) of the Act of 1784, for laying out the counties of Eranldin and Washington, appeals were allowed in all eases, from the decision in the Land Courts, upon caveats to the Governor and Executive Council, or to the President of the Council for the time being in Council. (Watkins’ Digest, 293.)

And by the second section of the Act of 1789, the Governor alone is empowered to try appeals on caveats. (Watkins’ Digest, 407.)

Thus stood the Law in 1836. On the 24th Dec. of that year, the Legislature passed an act “ To repeal the ninth section, and all other parts of laws now in force in this State, by which caveats are directed to be tried where land is sought to be granted, before the Governor, and directing such caveats to be tried in the Superior Court of the county in which the land lies.”

“ Sec. 1. The ninth section of the Act of 1785, and all other laws or parts of laws allowing caveats entered by parties claiming grants for lands to be tried by the Governor of this State be, and the same is and are hereby repealed.”

“ Sec. 2. All caveats or appeals entered against the granting of any tract of land which has heretofore been directed to be tried by the Governor and Council, or the Governor, be and the same shall hereafter be returned to the Superior Court of the County where the land may lie; and the said Court shall submit ihe same to a jury with the evidence, in the same manner, and under the same rules of law as are usual in all cases for the trial of the titles to land; and the verdict of the jury shall be final and conclusive; and the record of said trial and verdict being transmitted to the Governor, he shall issue a grant to the party in whose favor the same may be.” (Cobb’s Digest 679.)

I need not say that this Statute bears on its face conclusive evidence of the most careless legislation. It repeals tho ninth section of the Act of 1785, instead of the tenth section of the Act of 1784,' the one intended. But passing by this inadvertence, as well as the looseness of language used in tho second section, what is the proper construction to put upon the Act ? Were I asked to state in good faith and conscience what the Legislature of 1836 intended to effect by this Act, I should be constrained to answer, to transfer the trials of appeals on caveats from the Governor to the Superior Courts. The whole law, and especially the title, authorizes this conclusion. But this construction would still require the first trial to be had in the Land Court, as provided for by the Act of 1783, giving to the Superior Court appellate jurisdiction only in the cause.

[3.] But by the Constitution of 1798, the Superior Courts are vested with exclusive jurisdiction in all cases respecting titles to land. It will be perceived, therefore, that if the special Land Court is ousted of all jurisdiction by virtue of this subsequent constitutional provision, and the Superior Court can exercise only appellate jurisdiction, that such a construction of the Act would render it wholly nugatory. It would be valid only to take away from the Governor all jurisdiction over these Land caveats, and for no other purpose whatever.

Now while I admit that the words of a Statute are to be taken in the sense in which the Law-makers probably meant them to bo taken, yet it must not be forgotten that Courts are bound so to construe an act that it may be made to operate, rather than be inefficient.

[4.] In view of all the difficulties which surround this subject, and in order to give to the people and the Courts a plain and intelligible rule for their guidance, we submit the following as the mode of procedure : Applications for warrants to survey vacant lands under Head-rights, are made to the Land Courts of the respective counties, and issued as heretofore, and placed in the hands of the County Surveyor. All caveats are entered in the office of the County Surveyor, whose duty it is to return the same to the Superior Court of the county where the land lies; and the same shall be docketed and tried in the same manner as is usual in all cases for the trial of titles to land. Thus giving to the Superior Courts original, instead of appellate jurisdiction, and thereby avoiding the constitutional difficulty already suggested, and at the same time preserving the symmetry of our system, by allowing a first and second jury trial.

Judgment affirmed.