Doe v. Roe , 31 Ga. 593 ( 1860 )

By the Court. —

Jenkins, J.,

delivering the opinion.

The 1st and 6th exceptions appearing in the record before the Court depend upon the same question, viz.: the validity of the grant from the State of Georgia to Isaac Briggs. The objection to the admissibility of the document as evidence, did not rest upon the fact that a copy was offered. That was a matter of consent, the original being present, and probably too much mutilated for convenient use.

“If it he necessary to prove the age of a deed by aliunde evidence, the affidavit of the witness made a few months after the d-eed purported to .be executed and attested by a justice -of the peace, whose official signature needs no proof, was sufficient aliunde evidence to show its ase to warrant its admission in evidence, especially as the deed appeared on its face to be free from suspicion, and as it came from the proper custody.” Pridgen v. Green, 80 Ga. 737 (2), 740.

1. Plaintiff in error presents three, objections against the validity of the grant. First, 'that it does not appear on the face of the grant that the survey had been advertised according to law. We do not hold that a recital in the grant of the advertisement of the survey,, according to law, is necessary to its validity. The Act of the 22d February, 1785, which requires the advertisement, provides that “no grants shall be signed till the survey has been advertised by the surveyor of the county, at least three months, after it has been recorded by the said county s%ixrveyor.” It is directory to the surveyor and to the Governor, who is to “sign” grants. It is to be presumed, in reference to each grant “signed” that the Governor, before signing, required evidence that the surveyor -had performed this duty. It may be questioned, moreover, whether the 2d section of the Act of 13th of February, 1786, which repeals so much of the before mentioned Act as requires the surveyor to record surveys made in his office, does not dispense also with the advertisement, which he was required to make “after it (the survey) has been recorded by the surveyor, etc. But, independently of this last view, we think the objection untenable. .

The second objection, that the names of the chain-carriers do not appear upon the plat, was waived upon the discovery that the act requiring this was passed after the date of the grant in question.

2. The second objection to the validity of the grant in question, was most -strongly -urged, and is certainly the most serious, viz.: That this grant was issued for five thousand three hundred acres, whereas the law provides that “the quantity of land granted and sold to any one person, shall not exceed one thousand acres.” It is a matter of public notoriety, that during the operation of the above restrictive clause, it was the custom of the Governors of the State, to issue grants for quantities of land larger than one thousand acres. Previous to the Act of December 24, 1836, the Governor, by authority of law, exercised not only executive power in issuing grants, but also appellate judicial power whenever, by caveat, the applicant’s right to a grant was contested. These considerations suggest the probability, that the practice of issuing grants for quantities exceeding one thousand acres (in seeming violation of the above quoted provision of the Act of 1783) rested upon some authoritative, contemporaneous construction of the whole law governing grants, upon head-rights and bounties. Even at this remote day, we can see reasons which may have led to such construction. It is apparent from a perusal of the numerous Acts relative to head-rights, from the year 1777 to the end of that century (see Cobb’s Digest, pp.. 660 to 675), inclusive, that great precision of language was not used in all cases. “Grants” and “land granted,” are sometimes spoken of when the context clearly shows, that the language used is applied to cases wherein the procedure had not gone beyond the issue of a warrant, or at most the making of a’survey under it. On page 667 such tract or tracts of land as the Justices of the county “shall think fit to grant ” are spoken of. And again, on page 660, those Justices are referred to as having “met and convened for the purpose of 'granting lands.” Now, their powers never extended beyond the issue of warrants for the survey of lands, preparatory to the issue grants by the Governor, and the holding of Courts to try caveats. They never granted lands. It is worthy of note, also, that the first instance above cited, of the improper use of the word “grant,” occurs in the same act which contains the restrictive clause here relied upon. . The restriction is a proviso to the first section of the Act of 1783 (p. 665), which authorizes each male citizen to take up, free of charge (except fees) on his own account, two hundred acres, and then to purchase at a stipulated price, fifty acres for every head right in his family. It is. clear, then, that the proviso- was intended as a restriction upon the privilege of the citizen, not upon the granting power of the executive. It was a limitation of the number of acres for which a warrant of survey might be issued. It has been argued, that the survey must conform in quantity to the warrant, and the grant to the survey; and that, therefore, the limitation put upon the warrant, is, in effect, a limitation upon the grant. Not necessarily, as we' shall see. Those warrants of survey, after having been located, and, I believe, before location, were transferable, as is recognized by the 5th section of the Act of June 7, 1777 — p. 662. What, then, would prevent the transferee of several warrants located, or unlocated, to have a consolidated survey and plat of them, and a grant in his own name, provided he adduced satisfactory evidence that the original warrants had been fairly and legally issued and transferred.

By the Act of 25th December, 1794, the Legislature prohibited the renewal of transferred warrants, and the survey of land under them, or such of them as bore date anterior to a day specified. This Act would seem to introduce a new rule to abolish the practice of consolidating grants, but it was passed subsequent to the date of the grant before us.

This precise question was considered, and decided by the Supreme Court of the United States in the case of Patterson vs. Wynn, nth Wheaton, 380. We concur in the view taken in that case. This Court also, in the case of Burkhalter vs. Edwards, 16 Geo. 593, recognized arguendo, an existing practice of consolidating lands previously granted, and talcing a new grant for the whole.

We, therefore, find no error in any ruling of the Court touching this grant.

It appears from the bill of exceptions, that the defendant in the Court below put in evidence a deed from Isaac Briggs, the grantee, to Thomas Smith, which was not objected to: He next offered, in evidence, a deed from Thomas Smith to William Patterson, dated 19th May, 1793, upon the depositions of one Moule and one Williams, showing that the subscribing witnesses to the deed were dead, and affording some evidence as to their signatures as such witnesses. Plaintiff below objected, first, because the witnesses did not testify to a knowledge of the handwriting of both subscribing witnesses to the deed; and, secondly, because the handwriting of the grantor was not proven. The testimony offered sufficiently proves the handwriting of one of the subscribing witnesses, if not of both. Neither witness examined testifies to having seen the subscribing witness, Sulmore, write, but both testify to their familiarity with his signature as President of a bank, and as a Justice of the Peace, and profess to know his handwriting and signature. We incline to 'think the proof of execution was sufficient to carry the deed to the jury. But we affirm the judgment of the Court, admitting this deed in evidence, on the ground that it was more than thirty .years'old, and was found in the proper custody, accompanying, other deeds, together constituting a chain of title. This, in the absence of any suspicious appearances upon its face, made it admissible without proof of execution. In such a case, the law presumes everything necessary to its admission.

4. Defendant in the Court below offered, in evidence, an exemplification of the last will and testament of William Patterson, and plaintiff objected, on the ground that the will had never been admitted to probate and record in the State of Georgia. The objection was overruled, and plaintiff’s counsel excepted.

This document does not appear in the brief of evidence, but in the bill of exceptions, the counsel of plaintiff in error states that it. “was admitted to probate and record in the county of Baltimore, State of Maryland,” and that it “was duly certified as an exemplification from another State.”

Upon this statement (not having an inspection of the paper) we can not escape the conclusion that this exemplified copy would be received in evidence by the Courts of Maryland, as a muniment of title. The Act of Congress on this subject, provides that such papers “shall have such faith and credit given them in every Court within the United States, as they have, by law or usage, in the Courts of the State from whence the same are or shall be taken.” Plence, it results' that probate and record in Georgia, was not necessary to make this will evidence as a muniment of title to real estate in Georgia, and the objection was, therefore, not well taken.

Other deeds were offered, bringing the chain of title down to the defendant’s, and objected to on divers grounds, and the. judgment of the Court, overruling each objection, is excepted to.

We deem it unnecessary to consider these exceptions, because, even if we should find error in any of these rulings, we could not, for that cause, set aside the verdict and order a new trial.

The plaintiff, below, put in evidence a grant from the State of Georgia, executed in the year 1836, as the foundation of his title. It was a legitimate defence for the defendant to show title out of the plaintiff. This he did effectually, by showing that the State of Georgia had granted the same land to Isaac Briggs in the year 1787, and by adducing title from Briggs to the devisees of Patterson, bringing tliis chain of title regularly down to a late day, and thus rebutting all presumptions of escheat, or forfeiture of the lands, by the first grantee or his assigns. The result is, that the evidence which we have adjudged, properly admitted, shows title under the older grant in the devisees of Patterson, and, therefore, shows title out of the plaintiff.

The judgment of the Court below is affirmed.

JUDGMENT.

Whereupon, it is considered and ádjudged by the Court, that the judgment of the Court below be affirmed.