Thursby v. Myers , 57 Ga. 155 ( 1876 )

Jackson, Judge.

The demise was laid in the name of Mrs. Myers, who claimed title, as devisee, under the will of her husband. Her husband’s title was a deed, dated 20th of July, 1821, to Mord. Myers, signed by two witnesses, admitted to record in 1867, but under a probate deficient in showing delivery to Myers. This deed was made by Davis to Myers before he granted, but after he drew the land; and this was the plaintiff’s title. The defendant held under the same grantee from the state on a deed younger than the grant. The jury found for the plaintiff, the defendant excepted, and assigns for error several rulings of the court, which are now before us for review.

1. The first assignment is that the court erred in admitting the deed from Davis to Myers. It was admitted as an ancient deed. The proof was that plaintiff’s 'attorney got it either from Mrs. Myers, the'plaintiff, or from her agent, he could not remember which. We think the deed was properly admitted, it being more than thirty years old, and coming from the proper custody. It is true that there was no possession under it, but it was executed in the presence of two witnesses, one of whom swore he saw it signed, and also that the other witness saw it signed, and being defective solely for want of proof of delivery, we think its age entitled it to go in: 31 Georgia Reports, 599; 33 Ibid., 565; 43 Ibid., 165.

. 2. The next error alleged was the admission of the exemplified copy of the will. It came as a copy of a record from the ordinary’s office of Chatham county. It could not have got on record unless it had been proven, and the presumption is that it was duly admitted to probate. The Code covers the point: Code, sections 3822, 2432. As the plaintiff claims as devisee, it is not necessary that she show letters testamentary; the will is her muniment of title, and being herself the nominated executrix, and the ordinary having certified that she took out letters, it will be presumed that she assented to the legacy.

3. The defendant claimed by prescriptive title also, and the court told the jury to strike out certain years when there was no possession. The ground of error does not fully appear,' blanks being left therein not filled up; but we think there may be enough to show that the court did express his opinion on facts to the jury, and this is prohibited by the statute in positive terms. But the question is, did it hurt the defendant? We think not, for the reason that in no view of the tacts is continuous possession for seven years made out.

4. It is also alleged as error that the court charged the jury, that if both original deeds from the common original feoffor were not recorded in time it could not relieve the want of record in time of defendant’s first deed in his claim, that some intermediate or derivative deed was recorded in twelve months. We see no error in the charge.

5. But the great controlling question in the case, and which counsel especially requested us to decide, is whether the deed, older than the grant, but made after the draw, conveyed such title to the plaintiff as he could recover in ejectment on over a younger deed made after the grant ? We think that this question has been clearly settled by the decisions of this court. It is true that in 15 Georgia Reports, 521, although a deed older than the grant was admitted in evidence, Judge Bennin», in delivering the opinion, seems to have put its admissibility on the fact that if the grant-fee had been paid when the deed was made, a perfect equity would be in the vendee, and thought they might be able to prove that, and therefore admitted the deed. It is true, also, that he argues to show from the old common law writers that there could be n'o estoppel on the grantee, and his assigns in such a case. But the same judge, afterwards, in delivering the opinion of the court in two cases, settled this case: In Henderson vs. Hackney, 23 Georgia Reports, 383, it was distinctly ruled that after the draw and before the grant, the equitable title was in the drawee, and the legal title in the state for his use when he paid the grant-fee, that this equitable title was vendible or transferable, and on its sale or transfer the state held the legal tjtle for the use of the transferee, and that the moment the drawer paid the grant fee and got the grant, the legal title, without stopping in the drawer, passed at once into the transferee by the statute of uses, and thus the transferee held the -complete title, legal and equitable. So in Dudley & Henderson vs. Bradshaw, 23 Georgia Reports, 17, the same point is distinctly ruled. These cases cover this, and the holder of this, old deed made before the grant, has the better title to this land.

6. We think that there is nothing in the point that because the tenant put in possession of land, obligated himself to continue there a certain term of years, and vacated it against his bargain, therefore, that the laud was not vacant, but the owner in adverse possession all the time.

7. There is evidence and law to sustain the verdict.

Judgment affirmed.