Thrower v. Wood , 53 Ga. 458 ( 1874 )

McCay, Judge.

Were the dispute between the parties in this case a dispute between either of them and a third person, or even between themselves, about anything else than this particular land, we should not hesitate to affirm this judgment. - The charge of the court, as to the presumption of legitimacy, where there is a possibility of access, is not stronger than the Code, section 1786. The words, strong presumption and clear evidence are the very words used by the codifiers. Nor do we think the judge, by adding the word satisfactory, has given any expansion to the rule. “Clear and satisfactory” is no stronger than “dear.” Indeed, it rarely strengthens a statement, but rather weakens it, to heap up adjectives, when one that conveys the whole idea has been already used. So, too, as to the presumptions arising from the act of 1855. We are not prepared to say that a private act of the legislature is operative, as a general rule, in any way against those who are neither parties to its procurement, or in some way privies to it. It is true that there are authorities giving absolute verity to an act of Parliament, and there are expressions used even by our own judges looking the same way. But the express division of powers in our constitution, by which the legislature only has legislative power, is a large qualification upon these ideas, and whilst we are clear that such an act is not conclusive, except as we have said, we are not even prepared to' say that it is even prima facia as against perfect strangers to it. But however this may be, as a general rule, both as to these presumptions against adulterine bastardy and in reference to private acts of the legislature as against strangers, we are of the opinion that in this case, under the facts disclosed by the record, the law bearing upon these points has not been administered.

1. As Warner Lyon, after the act of 1855 was passed, has, by his deed of December of that year, evidently acted on it by making the deed under which both parties in this suit claim their rights, it is a very fair presumption that he procured the act of 1855 to be passed. This deed - is to the grantee in the name the act gives him, and as the child of Warner Lyon. As the grantee had neither the name nor the legal relationship without the act, it is but a reasonable in-, ference to assume that Warner Lyon either procured or assented to its passage. .

2. Both of the parties in this case set up title to the land in dispute, under the deed of Warner Lyon to his three children made to them after the passage of the act of February, 1855, to-wit: December 6th, 1855, and that deed is in terms in consideration of the natural love and affection he, Warner Lyon, has to and for such three children. One of these children was Levi Jackson Lyon, the assumed ancestor of the defendant in error. Her claim to the land in dispute is dependent on that deed; it is her muniment of title, the very foundation of her right. If she has any status in court in this dispute, she gets it-under that deed. The land in dispute is in the possession of the Lyon family, who got it and hold it under the same deed. Were it not for that deed the land in dispute would belong to neither of the parties to the suit. It would have remained Warner Lyon’s. He might have sold it or given it away, or at his death it would, under our law, have been assets for the payment of his debts, and distribution among his heirs, with a right of dower in 1ns widow.

The case before us is simply this. In a dispute about a parcel of land, when both parties claim under the same deed, is it competent for one of them to set up title under the deed, and in the same breath deny the very terms of it? Is it competent for the defendant in error to insist,, as she must do, that Levi Jackson Lyon acquired title to the land in dispute by virtue of the deed of December 6th, 1855, from his father, Warner Lyon, and in the very same breath say I claim the land by purchase from the Worthingtons who are the legal heirs of Levi Jackson Lyon, because the deed recites an untruth as to the paternity of Levi Jackson Lyon, because he was not the child of Warner Lyon; his name was not Levi Jackson Lyon, but Levi Jackson Worthington, and Warner Lyon could not and did not have for him the natural love and affection of a father? It seems to us that to state such a proposition is enough. It answers itself. One cannot claim under deed and deny its terms. The parties to a deed and their privies are estopped by its recitals: McClesky vs. Leadbetter, 1 Kelly, 557.

As a matter of course, the recital, to be an estoppel, must be something material. Here it is the very essence of the deed. Without the recital it would never have been made. Upon the very face of the deed it is stated that the sole and only motive of it, is the fact that Levi Jackson Lyon is the child of Warner Lyon. To deny this fact, is to strike at its very vitals, to destroy its foundation, to make it invalid, as without consideration. All deeds made and operating under the statute of uses, were', under the English law, required to be on their face, for a valuable or a good consideration. Before the statute of uses, they did not pass a legal title, they were only of force in equity, which enforced them because a valuable consideration having been' paid, or they having been made in fulfillment of a duty to provide for a kinsman, the chancellor held the grantor bound in conscience to perform. Deeds made only for friendship or good will, stood on a different footing, and were not enforced by equity for want of this ingredient in them to bind the conscience of the grantor; and since the statute of uses, which in effect made such deeds legal titles, the uniform ruling of the English and American courts has been, that deeds of this kind — and all our deeds are such — must be for either a valuable or good consideration. And our Code, section 2690, has the same provision. A good consideration must be the love and affection of either blood or marriage: Cruise Digest, (Greenleaf,) book 4, page 24. Even the affection of a man for his bastard son, is not sufficient: Blount vs. Blount, 2 Law Reports, 587. See this whole subject fully discussed in Shephard’s Touchstone. The denial therefore, that Levi Jackson Lyon was the child of Warner Lyon, and the assertion that his name was not Lyon but Worthington, is a denial of a material part of the deed. It is a denial of the declared motive and purpose of the deed, and an assertion that its recitals upon that subject are untrue. The case, is, in our view, as strictly within the principle of* an estoppel by deed as a case can be. It is not only within the letter but the spirit of the rule.

Tlie petitioner in this case, comes into court claiming this land: 1st. Because (he deed says Levi Jackson Lyon was the the child of Warner Lyon; and 2d, because he was not the child of Warner Lyon. To get the property into the ancestor, it is necessary to show a deed declaring him such child, and then to prevent its taking the course the law gives it, if that were so,, it is asserted that he was not such child. In our judgment this cannot be done. If thfe plaintiff relies pn the deed, she cannot at the same time contradiet it. She cannot; come into the Lyon family, and having got property as one of it, take it out of the family line by the relationship that obtained it. Nor is this view of it met by saying that the deed may still be true, under the act of 1855, that is that Levi maybe the child of Warner as to him, and not the child as to the Worthingtons, by construing the act asan adopting act, and not a legitimating act. This only shifts the estoppel from the deed to the act. The plaintiff below cannot go to the act for one purpose and claim title by it, and refuse to accept it entirely. Warner Lyon is only himself bound by the act because he assented to it, and he would not have done this except on its terms; except upon the assumption of the very fact that is now denied. We do not say this defendant is bound by this act generally, but we do say she cannot set it up to get this land into Levi and then divert it from Lyon’s line by denying it. She cannot plead either the act or the deed, aud deny its material recitals. This aot and its recitals, and this deed aud its recitals, are necessities in order to get the laud in dispute into Levi, and it is neither justice to the Lyon family, nor is it law to pass it by inheritance out of the Lyon family, by denying these recitals. For these reasons we think this verdict wrong, and that in this case, and under tiie state of facts before the court, the judge erred in refusing to charge that the act of 1855 was evidence against the plaintiff. As the case stood before the jury, the evidence that Levi Jackson Lyon was the lawful child of Warner Lyon was conclusive. As against the plaintiffand for the purposes of this trial, to-wit: a dispute concerning this land, the plaintiff had herself, introduced evidence which was conclusive against her upon that question.

Judgment reversed.