Turner v. Joiner , 18 Ga. 368 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

What persons ought to be the parties to a rule, for the establishment of a lost Sheriff’s deed ?

What Court is the Court to entertain the rule ?

The answer to these two questions will decide this case.

The latter part of the sixth section of the Judiciary Act 1799, is as follows : “and the said Courts, respectively, shall have power and authority to establish copies of lost papers, deeds or other writings, under such rules and precautions-as are or may have been customary, and according to law and equity.”

The rules and precautions that had been customary, and according to law and equity, for affording relief in the case' of lost writings, wore such as were in use for that purpose in Equity. And among those in use in Equity, for that purpose, as well as for all other purposes, was one, that all persons interested in the relief prayed for in the bill, should be parties to the bill.

Who, then, are the persons interested in the question, whether a Sheriff’s deed shall be established or not ?

Of these persons, he who, as Sheriff, made the deed, is obviously one. It is cleat that ho may be affected in various ways, by the judgment establishing the deed.

The defendant in the ft. fa. under which the property was sold, is another. It is against him, chiefly, that the deed, when established is to operate.

Is such a deed necessary to transfer the property to the purchaser ? It is the property of the defendant in ft. fa. that the deed is so to transfer. Is such a deed not necessary to the transfer of the property, but yet useful to the purchaser, as evidence, to show the property transferred to him ? Whatever, as evidence, shows the property transferred to the purchaser, as evidence, also shows it transferred from the defendant in ft. fa. In these respects, most important respects, too, it is the defendant in ft. fa. and not the Sheriff, who has the interest that is against the establishment of the deed.

[1.] In a proceeding in Equity, to obtain relief or protection against the consequences of the loss of a Sheriff’s deed, the defendant in the ft. fa. whose property the deed would transfer or effect, would be a necessary party. Of this, there cannot be much doubt. And if, in such a proceeding, he would be a necessary party, then, by the language of the sixth section of the Judiciary Act of 1799, he is a necessary party to a proceeding under that section, to establish a lost Sheriff’s deed.

This being so, the Sheriff’s deed, in this case, was not properly established — for Jones, the defendant in the ft. fa. was not a party to the rule by which the deed was established. For this reason, therefore, the decision of the Court, rejecting the copy deed, when offered as evidence, was right.

In what Court, of what county, is the proceeding for the establishment of a lost deed to land to be? In the Superior Court of the county in which the land lies.

The Constitution of the State says, that “ The Superior Court shall have exclusive jurisdiction,” “ in all cases respecting titles to land, which shall bo tried in the county where the land lies.”

A case for establishing a lost deed to land, is a case respecting the title to land. It is, therefore, a case which, by the words of the Constitution, has to be tried in the Superior Court of the county in which the land lies. Such a case more directly and exclusively respects the title to land, than does a case in ejectment; for strictly speaking, an ejectment concerns rather the possession of land than title to land.

[2.] We think, therefore, that the Superior Court of the county in which the land lies, is the Court in which a lost deed to the land is to be established.

There were some other points in the case, but the decision. of these tiro renders it unnecessary to decide them.