Duncan v. Pope , 47 Ga. 445 ( 1872 )

Montgomery, Judge.

1. Section 1789 of the Revised Code announces that a father is bound to support his illegitimate child. If he voluntarily make a contract for its support, the obligation is a sufficient consideration to sustain it, and no doubt it may be so made as to bind his representatives. The law, however, does not extend the obligation to the latter, in the absence of any such contract. A mere statement by the father of his intention that the child is to be supported out of his estate after his death, does not amount to such a contract. If the father fail to support the child voluntarily, the law points out the mode by which he may be compelled to enter into a contract for its support: Code, 4664, et seq. The mode here provided necessarily contemplates proceedings against him (not against his representatives) by the officials whose duty it is to see that the child does not become chargeable to the county. The law nowhere provides for a suit in behalf of the bastard for such support, either against the father or his representatives, not founded on. some contract. A husband is bound to support his wife: Code, 1747; a father, his legitimate child: Code, 1783. It has never been contended that the enunciation of these principles in the Code gave the wife or child the right to enforce the obligation by suit. Section 1789 of the Code gives no right not in existence before its adoption. The section is but the embodiment of the legal principle applicable to such cases, and which had, therefore, been of force.

2. The heirs of the putative father in this case having made and delivered to the bastard a deed of all their interest in a piece of realty held by the ancestor in his lifetime, in common with another, of course their interest, and no more, passed by the conveyance, and entitles the grantee to a partition as between herself and the other tenant in common.

3. But the administrator has no power to bind the estate by promising to extinguish the title of the other tenant in common for the benefit of the bastard. The obligation to support the bastard, as already shown, is a valid consideration to support a contract made by the father for that purpose. It will not support the promise of his administrator to do so.

4. An escrow, ex vi termini, is a deed delivered to some third person, to be by him delivered to the grantee upon performance of some precedent condition by the grantee or another, or the happening of some event. If delivered to the grantee, or his agent, the delivery is complete, and the paper is not an escrow: Jordan vs. Pollock, 14 Georgia, 145; Wellborn vs. Weaver, 17 Georgia, 374; Code, 2651. It follows, that the delivery of the deed to Messrs. Simmons & Bacon, the attorneys of the bastard, carried the complete title in the property granted to the grantee divested of all parol conditions.

5. On the hearing before this Court, the counsel for the administrator objected to the verdict and decree, upon the ground that the record showed that the administrator, the substantial defendant in the case, was not a resident of Bibb county, in which the action is brought, but of Houston, and should have been sued in the latter county. This objection was not made in the Court below, and this Court, being a Court for the correction of errors only, cannot now entertain it.

Judgment affirmed, with the following direction: That so much of said decree as requires C. C. Duncan, as .administrator of J. S. Pope, to pay to William Bishop, next friend of Sallie Pope, the sum of $800 00, he set aside, .and that on the decree of the jury, judgment be entered up that the sheriff sell said land for partition, and that two-sevenths of the proceeds of such sale be paid to the defendants, Collins, and the remaining five-sevenths to such person as the Court may appoint as trustee for Sallie Pope, and that C. C. Duncan, as administrator as aforesaid, pay to said S. and A. P. Collins the sum of $227 85 for rent of said two-sevenths of said property from the 1st day of August, 1866, to February 1st, 1872.