Doe ex dem. Dearmond v. Roe , 37 Ga. 5 ( 1867 )

Warner, C. J.

The main, and controlling question, in this case, is whether the plaintiff can recover on his demise from Dearmond, in view of the facts disclosed by the record. There are three demises' in the plaintiff’s declaration — one from Boswell Cook, one from William P. Dearmond, and one from William P. Dearmond for the use of Heal. The plaintiff read in evidence a grant from the State to Boswell Cook, and a deed from Cook, the drawer of the lot of land in dispute, to Dearmond, dated 26th September, 1829. The defendant read in evidence a deed from Dearmond to Heal, dated 29th August, 1850, conveying to him the lot of land in controversy. At the time of the execution of the deed from Dearmond to Heal, Isaac Brookings was in possession of the lot of land. The deed from Dearmond to Heal being void, on the ground of Brooking’s adverse possession at the time it was executed, can the plaintiff ’recover the possession of the land, on his demise from Dearmond ? This is the question in the case.

This case has already been before this Court for error assigned to the rulings of the Court below twice — Brooking vs. Dearmond, 27th Ga. Rep., 58, and Doe, ex dem. Dearmond, 30th Ga. Rep., 632. The decisions of this Court upon the question now involved in the case, are in direct conflict, as we understand them ; that is to say, upon the question, whether the plaintiff can recover the land upon the demise of Dearmond, provided the deed from Dearmond to Neal is void. In the case of Brooking vs. Dearmond, this Court say ; “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” Again, in discussing the effect of the judgment in the former suit, this Court said: “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 i’ecover would not only be entirely consistent with Dearmond’s having the title, * * * * the void deed never having had efficacy to draw the title out of Dearmond.” What we understand from the decision of the Court in that case, is, that although the deed from Dearmond to Neal may have been void, yet the plaintiff could recover on his demise from Dearmond, the void deed to Neal never having had efficacy to draw the title to the land out of Dearmond. When this case came before this Court the second time, Doe, ex dem., Dearmond vs. Roe, et al., after stating the facts of the case, the Court say: “On these facts the plaintiff was not entitled to a verdict. Not on the demise from Dearmond, because the deed from him to Neal conveyed the legal title out of him. Nor on the demise from Neal, because the judgment recovered in the former suit barred his right to recover. Nor on the demise from Dearmond for the use of Neal, because the deed to Neal conveyed the equitable as well as the legal title to Neal.” This last decision of the Court, as we understand it, is to the effect that the plaintiff cannot recover on the demise from Dearmond, although the deed from Dearmond to Neal may have been void. In this last case, the Court bases its judgment upon the idea that the deed from Dearmond to Neal conveyed the title to the land out of Dearmond, the plaintiff’s lessor.

In consequence of these conflicting views of the Court, heretofore expressed, upon the facts of this case, we have felt some degree of embarrassment. The Court below charged the jury, that “if the title was shewn out of Dearmond into Neal, they could not find on the demise from Dearmond.” According to the law, as we understand it, applicable to the facts of this case, the charge of the Court to the jury was error. As the deed from Dearmond to Neal was executed at the time of the adverse possession of the land by Brooking, it was void, and the legal title to the land remained in Dearmond, so as to enable him to maintain an action of ejectment upon it, and that such void deed cannot be set up by the defendant to the prejudice of that title. The legal title to the land was in Dearmond, the plaintiff’s lessor, and the void deed to Neal did not pass or convey that legal title out of him. In the case of Williams vs. Jackson, (5th John. Rep., 4, 9,) it was held, that “if a person out of possession conveys land, held adversely by another, such conveyance is void: but the title remains in the grantor, so as to enable him to maintain ejectment.” Brinly vs. Whiting, 5th Pickering’s Rep., 347, to the same point. The title of Dearmond has not been adjudicated in the Court below, and the former recovery, as to the title of other parties, cannot affect his title to the land.

Let the judgment of the Court below be reversed.