Whittington v. Doe ex dem. Wright , 9 Ga. 23 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

An action of ejectment was brought to the February Term, 1848, of the Superior Court of Crawford County, upon the several demises of William Wright and James Pressnol, against James Whittington, for lot No. 86, in what was originally tine 2d district of Houston, but now Crawford County. The genei'al issue, and the Statute of Limitations were pleaded. On the final trial, the plaintiff tendered in evidence" a grant from the State to William Wright, dated in February, 1825, and a deed of gift from the grantee to James Pressnol, dated in June, 1832, proved possession in the defendant, the value of the rent, and closed his case. The defendant relied on Sheriff’s title. It seems that this same lot of landwas sold under execution the first Tuesday in January, 1834, as the property of one Jacob Pressnol, bought by one John Walpole, to whom a deed was made, and who, on the 18th day of the same month executed a quit claim conveyance to James Whittington, the defendant, who was the Sheriff that sold the land. Whittington proved that Jacob Pressnol, together with William Wright, the grantee, and one Kelly, went into possession of tire premises in 1823 or 1824, before the land was granted, and that Jacob Pressnol remained there, making improvements, and exercising acts of ownership, up to the time of sale in 1832, by the Sheriff, and that Whittington had been in possession ever since. At what time Wright left the land, does not appear. The deed which he made to James Pressnol in 1834, recites, that he was then a citizen of Merriwether County. To aid in the defence of the action at law, Whittington filed a bill setting forth the foregoing facts, and charging that the conveyance to James Pressnol was fraudulently made to defeat the creditors of Jacob Pressnol, who, it was alleged, was the purchaser of the draw of William Wright in the lottery. It further charged a want of notice, actual or constructive, of the claim of James Pressnol, when the land was bought at Sheriff’s sale. It prayed a perpetual injunction ¿gainst the action of ejectment. The answer denied all the equity in the bill, and both cases were submitted to the Jury at the same time.

The presiding Judge instructed the Jury, that if the fi. fa. which sold the land had been levied on it as it was, and a claim had been interposed by William Wright, and they would have found tire property subject, that their verdict in the present issue should be for the defendant; and further, that if the creditors of Jacob Pressnol could have condemned this land to the payment of Ms debts, that their finding should be for Whittington; that if they believed, from the testimony, that Jacob Pressnol had seven years’ continued and adverse possession of the land previous to the sale by the Sheriff, that the legal title was vested in him, and that the purchaser at Sheriff’s sale, Walpole, and Whittington, his vendee, acquired a good title.

[1.] That if Wright and Jacob Pressnol were in the joint occupancy of the land, that in the absence of all proof to the contrary, the law would construe it to be the possession of him who held the title, and that Pressnol’s possession was in subordination to the title of Wright, and not advsrse to it; that a possession to be available under the Statute, must be exclusive of the possession of any one else, except the alleged owner, and those claiming under him; that the j oint possession of Wright and Pressnol could not operate to defeat Wright’s title, unless Pressnol claimed adversely to Wright.

I have repeated the substance of that portion of the charge which relates to the actual fraud which might be connected with this transaction, as well as to the Statute of Limitations, and we think that it was not only full, but exceedingly clear and discriminating, and should have been altogether satisfactory to the defendant.

[2.] But it is complained that the Court ought to have instructed the Jury, as it was asked to do, that the failure to record the deed from Wright to James Pressnol, until after the purchase by Whittington, and no actual notice being given of this title, was a fraud upon the defendant, and that James Pressnol, although a minor, was bound, at his peril, to take notice of the Sheriff’s advertisement, and to have forbidden the sale. Such is not our understanding of the law. It was neither the duty of William Wright, James Pressnol, nor any body else, to notify the purchaser at Sheriff’s sale, that the defendant in execution had no title to the property which was selling. Caveat emptor-A&t a purchaser beware what he does — is the correct doctrine. It is the duty of bidders to inform themselves — to search the records — to exercise all proper caution, that they may not be ignorant of the amount and nature of that person’s interest which they are about to buy. Qui ignorare non debuit quad jus alienum emit.

[3.] Our claim laws are cumulative, permissive and not mandatory. They do not take from the owners of property their right to assert their title by trover or ejectment or trespass against the Sheriff, as at Common Law; and a sale by the Sheriff cannot divest the owner of his title, unless he does, or omits to do something, and thereby entraps the purchaser.

[4.] If he is present, and his properly is offered for sale, and he stands by and encourages the sale, or does not forbid it, and thereby another is induced to purchase the estate, under the supposition that the title is good, neither the owner nor his privies, under such circumstances, will be at liberty to dispute the validity of the purchase. ■ 1 Fonb. 163, 164. And even infancy will constitute no excuse for such conduct; for infants are not privileged to practice deceptions or cheats on innocent persons. 9 Mod. 33.

[5.] But James Pressnol was in a distant County on the day of sale, and knew nothing of what transpired until long subsequently. Neither the rights of infants nor adults would be affected under such circumstances. 1 Story’s Eq. Jur. §§385, 386.

As to the failure of James Pressnol to have his deed from William Wright recorded, what has that to do with the case ? Had his conveyance been from Jacob Pressnol, the defendant in execution, there would have been force in the objection. But the doctrine of registration has no application, we apprehend, to a case like this. What insight could the registration of the deed, from Wm. Wright to James Pressnol, have given any body, as to Jacob Pressnol’s title to this land, between whom and the other two parties, the records showed no privity in estate ? Had the records shown title at any time in Jacob Pressnol, then it would have been right and proper that the records should have shown title out of him, but it is sufficient to suggest that James Pressnol does not derive title through Jacob Pressnol, but Wm. Wright, the grantee of the land from the State of Georgia. In Roe and others vs. Doe ex dem. Neal, (Dudley’s Rep. 170,) it was decided that the deed, not being recorded, concerns no persons except those who derived title from the same feoffor by a deed of subsequent date to that under which the party claims title.

[6.] But there is another point. Counsel for the plaintiff in error desire to treat Whittington as a purchaser for value, and James Pressnol as a volunteer, and consequently contend, that in the absence of notice, the former is to be preferred. The answer to •be made to this argument is, that admitting Whittington to be the bona fide purchaser of Jacob Pressnol’s title, how does that give him any preference over a volunteer under William Wright?

The truth is, both parties here are standing on their legal title; the one bjpaper, the other by the Statute; and the only question is, which shall prevail ? And believing, as we do, that the law of the case has been fairly and forcibly given to the Jury, we do not see that justice requires that a new trial should be granted.