Witzel v. Pierce

By the Court.

Benning, J.

delivering the opinion.

Was the Court below right in admitting the letters of administration ? We think that the Court ivas.

There was a demise in the name of the administrator appointed by the letters. The letters therefore, were pertinent to the issue on that demise.

The letters were certified thus : “ Given under my hand, and seal of office, this, August, the 7th, 1854.

JOSEPH GAR, Ordinary, D. C.” [Decatur County.]

[1.] We think that this was a sufficient certificate, under the Act of 1852, “ to carry into effect the amended constitution, in reference to the Ordinaries.” Acts of 1852, 91.

Since that act, the Court of Ordinary has been its own clerk.

The deed from Augley Avas made before the grant had been issued to him, and before the act of 1833, “to prescribe the mode of selling land at Sheriff’s sale, in the counties of Lumpkin” &c, had been passed. These things being so, the Court below charged the jury that the deed conveyed no title, that is, as Ave understand the charge, conveyed no right.

Was this charge proper ?

We think not

A draw in any of the land lotteries, gives the drawer a right to the land on payment of the grant fees. This no body disputes.

Such a right is assignable.

It must be as much assignable as is the right of the holder of a bond for titles, conditioned for titles to be made to him on the payment of the purchase money, for it is a right that does not differ from that right, in any essential particular, and that right is assignable.

This Court has held, that a chance for a draw is assignable, Dugas vs. Lawrence, 19 Ga. Rep., 557.

Much more must the draw itself be assignable.

It is true, that the act aforesaid, of 1833, in its fourth section, says that sales of land in certain counties, (in one of which this land lies,) made before the grant shall have been issued, shall be “void.” Cobb Dig. 699.

But this act is evidence to show that the Legislature thought, that Avithout the act such sales would be good. If they did not, why did they pass the act ? And the sale of the land in question, in this case was made before the passage of the act.

Again in 1841, the Legislature amending this act, declared that all sales which might be thereafter made by Sheriffs or Coroners before the grant had issued, should be void; but that all deeds which might be thereafter made, or which had; been made since the act of 1833, other than those made by Sheriffs or Coroners, should be valid.

Now, among “ deeds, other than those made by Sheriffs or Coroners,” is it likely that the Legislature intended to make; a discrimination, founded merely on the relation which their dates bore to the date of the act of 1833, — a discrimination to-the effect, that those which were older than that act, should be void,but that those which were younger, should be valid? It is most unlikely. But if the Legislature intended that there should be no such discrimination, it must have intended that all should be valid, for it expressly said that soma should be valid.

Doubtless the Legislature thought that this object would be* accomplished by leaving deeds of a date prior to the act of 1833, as they were, and by a validating and repealing act for the others, such an act as that of 1841.

We think that the right was assignable.

There is nothing in this opinion adverse to the decision in Doe, ex dem. Garlick vs. Robinson, 12 Geo. Rep. 340.

In that case the decision was, that the drawer did not have such an interest in the land drawn, before the issuing of the grant, as was the subject of sale under a f. fa. against him.

But there are interests which are assignable, although it may be that they are not the subject of levy, as that of the purchaser of land who has only a bond for titles, and who has not paid the purchase money. The interest of such a purchaser is only subject to be sold after the vendor has made a deed to the purchaser, and it is then subject, only by virtue of a special statute, Cobb Dig. 517. Yet he may assign it himself.

But, if the interest of the drawer was assignable, then it was assigned by the deed of Augley, and therefore some title or right was conveyed by that deed.

Consequently the charge of the Court to the effect that that deed conveyed no title, was erroneous.

In respect to the other charge, we can only say that it lays down what is the general rule, but that the rule is to be taken in connection with the doctrine on which Jonekin vs. Holland, 7 Geo. Rep., and other similar cases are founded. See Drummond vs. Hardaway 21 Geo. Rep. 433.

■ We grant a new trial, but only on the one ground of the .first charge.

I remark, that, in my opinion, Augley could have maintained ejectment on his draw, whilst the grant was unissued; and therefore, that, in my opinion, his assignee can. This point, however, being, perhaps, beyond the precise case presented to this Court, is not determined by this Court.

Judgment reversed.