Brooking v. Lessee of Dearmond , 27 Ga. 58 ( 1859 )

By the Court.

Benning, J.

delivering the opinion.

[1.] It was wrong in the Court, as we think, to admit the copy grant to the jury, without requiring an excuse for the non-production of the original, either the excuse sanctioned by the rule of Court, or that sanctioned by the rule of the common law. See Sutton vs. McLeod, decided at Savannah, January Term 1859.

[2.] It was also wrong in the Court, as we think, to exclude from the jury, the certificate of the Surveyor General. That certificate went to show, that the grant was, by mistake, in the name of Boswell Cook, when it should have been, in the name of Roswell Cook. And the state of things might have been, that there was never any such person, as Boswell Cook, but was such a person as Roswell Cook. If that was the state of things, then it could not be, that any right could ever have vested in Boswell Cook, and, by consequence, it could not be, that any right could ever have been derived from Boswell Cook; Boswell Cook would be a nonentity, and a nonentity can neither receive nor impart. Deeds in the name of a nonentity, must of necessity, be the work of some one assuming, or forging, the name of the nonentity. But under deeds so manufactured, no rights would vest as against the true owner. These things being so, the certificate going to show the mistake aforesaid, was rendered ■ admissible by the Act of 1857, providing for the admission of parol evidence to show mistakes in grants.

Did the Court err in allowing Dearmond to read as evidence, the agreement entered into, in the first ejectment case, by Hood, the counsel for Neal, and Carithers, the counsel for Brooking? This agreement formed a part of that case, and as the Court had permitted Brooking to read in evidence, the other part of the case, it was but a matter of course, to let Dearmond read in evidence, this part, so, that the whole case might be before the jury. What the agreement was to be worth, when thus read in evidence, was another question; a question which, as it will be seen in the sequel, need not be decided.

Was the charge right? The charge was, that the jury might find for the plaintiff, Dearmond, although he had conveyed the land to Neal, before the commencement of the suit, and there was no demise laid in the name of Neal, provided, they believed, that Neal was the real, though not the nominal, party in interest.

This proviso we take to amount to this ; provided the jury believed, that the action was brought by Dearmond for the use of Neal.

This being so, the charge amounts to this, that a man may recover in ejectment, although he has no title whatever, if he sues for the use of another man, who has the title. We are not aware of any law to authorize such a charge as this. In every case, as far as we know, in which the law allows one person to sue for another, some title must be in the former person. He must have the legal title, and the other person only the equitable. The payee of a bond, or of a promissory note not negotiable, who nevertheless assigns the bond, or the note, may sue for the use of the assignee. But he has the legal title still in him, and the assignee has acquired only the equitable title. Whether there is any case in which one person may sue in tort — in trespass — for the use of another, we are not prepared to say. But we do think, that if there is any such case, it must, at least, be a case in which, the person so suing, must have some title of some kind.

Now if the charge had been, that, although Dearmond having the title in him, had conveyed to Neal, yet Dearmond ought nevertheless to recover, provided, the conveyance to Neal was, on some account, void, the charge would have been right; that is it would, if authorized by the evidence; for, in that case, the conveyance to Neal being void, would count for nothing, and the entire title would be in Dearmond.

We think, then, that this charge of the Court, was erroneous. If the legal title was in Neal, why did he not sue in his own name ? That would have been the regular mode; and would have been a mode by which, he would have obtained everything that he ought to have obtained. If the legal title was not in him; if the deed to him was void, then the charge, besides not being law, was not suited to his case, for it assumed that the title had been “conveyed” by Dearmond to him; that is, it assumed, that the legal title was in him.

From what has thus been said of the charge, it is apparent that we must consider the first request to charge, of Brooking’s counsel, to have been proper.

The other request of his counsel, was, that if there was a former recovery by Brooking in a suit in the statutory form, brought by Neal against Brooking, then the jury must find for the defendant, provided, Neal was the real party to the suit on hand. We suppose that this proviso means; if the suit was broughtfor the use of,Neal. This request, the Court rejected, on the ground, that the agreement heretofore mentioned, made by the counsel in the former suit, superseded the judgment in that suit. Whether this was a sufficient ground or not, we will not undertake to say, as we think, that there was another ground which was clearly sufficient.

[4.] And that ground was the fact, that the plaintiffs in the two suits, were not the same; or if the same he was not suing in the same right. In the former suit, the plaintiff was Neal; in the latter, the plaintiff was Dearmond. What the judgment in the former suit said, was, that Neal was not entitled to the land; but this was not saying that Dearmond might not be entitled to it. No; it was not saying so, even if Neal was claiming under Dearmond, for it might have been, that his deed from Dearmond, was, for some cause, void, in which case, his failure to recover, would not only be entirely consistent with Dearmond’s having the title, but would really be evidence of Dearmond’s having the title, the void deed never having had efficacy, to draw the title out of Dearmond.

The fact that the second suit was for the use of Neal, could make no difference.

For one of two things must be true; 1st, that Dearmond had the entire title, both legal and equitable; or, 2dly; that Dearmond had the legal title, and Neal, the equitable. And if it was the first that was true, then the second suit was entirely Dearmond’s ; as much so, as it would have been, if the allegation that it was for the use of Neal had not been in the declaration. And such allegation would be evidence merely, of a purpose in Dearmond, to bestow a gratuity on Ñeal. And if the suit was Dearmond’s, to the full extent, then, there can be no pretence, to say that any judgment in a suit in which, not he, but Neal was the party, could be a bar to the suit.

And if it was the second of the two things, that was true, then, although we might say, that the suit was in reality Neal’s suit, yet it would be a suit in which, he would be suing in a right different from that in which he sued in the first suit. He would be suing in the right of Deurmond— be asserting Déármond’s legal title — whereas, in the first suit, he sued in his own right; he asserted his own equitable title, which being an insufficient title to sustain a suit for land, he failed in his suit. And when a man sues in one right, and fails, that is no reason why he may not sue again, in another right. If a man sues as executor and fails, may he not nevertheless, sue again in his individual capacity ? most certainly he may. So, if a draft not negotiable, payable to A. is assigned to B. and B. sues on it in his own name, and fails for lack of having the legal title, is that a bar to another suit by him, in the name of A. for his use ? Assuredly not; consequently, although Neal, suing in his own right, may have failed, that was no bar to his suing again in the right of Dearmond.

These, then, are the reasons, why we think, that the Court was right in refusing to charge, that the judgment in the first suit was a bar to the second suit.

New trial granted.