Doe ex dem. Prescott v. Roe , 29 Ga. 58 ( 1859 )

— Benning J.

By the Court.

delivering the opinion.

Was the Court below right, in granting the nonsuit?

Two grounds for the nonsuit, were insisted on. The first was, that Pace had not reduced the land to possession, when his wife died, and, that he had not administered on her esiate since her death.

But we think, that an administration by him, on her estate, was not necessary in order to make the land his. We think, that the marriage made the land, his. The language of the Act of 1789, on the subject, is; “and, in cases of intermarriage since the 22d day of February, 1785, the real estate belonging to the wife, shall become vested in, and pass to the husband, in the same manner as personal property, doth/5 Pr. Dig. 225. By “personal property,” we understand, personal property inposssession, and not, dioses in action ; and, as to personal property in possession, “ the husband hath therein, an immediate and absolute property, devolved to him by the marriage, not only potentially, but in fact, which never can again revest in the wife or her representative ? 2 Black. Com. 435.

Consequently, by this Act of 1789, Pace, the husband, had in this land, an immediate and absolute property devolved to him, by the marriage, not potentially, but, in fact.

[1.] We think, therefore, that the first ground for the non-suit was insufficient.

The second ground was, that even if Pace had the title, yet that the land was held adversely to him, when he made the deed to Heard, and, therefore, that that deed was void by the Act of 32 Henry VIII,, entitled “the bill of bracery and buying of titles/5 But what of that? There was a demise in the name of Pace himself, as well as, one in the name of Heard. And Pace’s deed to Heard, was void, or, it was not; if it was void it had no effect, and the title still remained in Pace, if it was not void it had effect and conveyed the title into Heard. But if either Heard or Pace had the title, the plaintiff was entitled to recover, for he had a demise from both Pleard and Pace.

It is unnecessary, then to say, whether it was or was not true, that the deed from Pace to Heard was void, by the Act of Henry the VIII.

[2.] We think, then, that the second ground for the non-suit, was also insufficient.

The result therefore, is, that, in our opinion, the Court was not right in granting the nonsuit.

• Judgment reversed.