Brinsfield v. Carter

• Decision Date: 31 January 1847
• Docket Number: No. 20.,20.
• Citation: 2 Ga. 143
• Parties: Thomas Brinsfield, plaintiff in error. vs. Little berry Carter, defendant in error.
• Court: Georgia Supreme Court

2 Ga. 143

Thomas Brinsfield, plaintiff in error. vs. Little berry Carter, defendant in error.

No. 20.

Supreme Court of the State of Georgia

JANUARY TERM, 1847.

Ejectment. Brought by John Doe on the demise of Littleberry Carter, who is the defendant in error, against Richard Roe, casual ejector, and Thomas Brinsfield, who is plaintiff in error, as tenant in possession. In Muscogee Superior Court, and tried before Judge Alexander, November Term, 1846.

For the facts of the case, see the opinion of the Supreme Court.

Jones, Benning & Jones, A. Iverson and G. E. Thomas, for the plaintiff in error.

Mr. Benning for the plaintiff in error, submitted the following points and authorities:

1. By the mere fact of drawing a prize in the Land Lottery of 1827, the drawer acquired a legal title to such prize. Daws. Comp. Act No. 716, the title, secs. 11, 21, 12; Act No. 726; Do. No. 723, sec. 10; Do. No. 741, sec. 1; Act of 1843, Pamph. 68, sec. 5; Prince 213, 565; Jones & Parsons' Heirs vs. Inge & Mardis' Heirs, 5 Porter, 327; Rosser vs. Bradford, 9 Porter, 354.

2. This title was one founded in contract between the State on the one part and the drawer on the other. Same Act No. 716, sec. 15; 1 Kent, 414 et. seq.; New Jersey vs. Wilson, 7 Cranch; Zerrett vs. Taylor, 9 do. 43; Dartmouth College vs. Woodward, 4 Wheat 518; Green vs. Biddle, 8 do. 1.

3. It is implied in every contract that the parties agree to be bound by the law of the land pertaining to it then in force. 16 Johns. 233; Lex Loci passim; and by that law the condition of forfeiture on non-payment of the grant fee, was a security for the fee and not a limitation of the estate. 2 Story's Equity Jur. secs. 1018, 1311 to 1315, 1316, 1319, 1321, Law of Mortgage and Bonds; White vs. Sealy, Doug. 49; Ld. Lonsdale vs. Church, 2 T. R. 388. And by that law a grant issued to any one but the drawer before forfeiture by office found, was void. 2 Black. Com. 258; Angell & Ames on Corporations, 503.

4. An Act, which both treats the condition, not as a security, but as a limitation, and authorizes a grant to be issued to another than the drawer, before forfeiture of his draw by office found, impairs the obligation of the contract, and is void. Such an Act is the Act of 1843.

5. But again.—The power to determine the question whether any wrong has been done, be it ex contractu or ex delicto, involving as it does both law and fact, is a power properly attached to the judiciary and cannot be exercised by either of the other departments unless expressly given to it. Cons. Ga. art. 1, sec. 1.

6. The Legislature by the Act of 1843, adjudged and "considered " the effect to the drawer of not taking out a grant by a specified day, and it authorized the Governor, or he acted without authority, to try the fact whether the fee remained unpaid, or to assume that it did, and thus exercised a power properly attached to the judiciary, to do which was unconstitutional. Act of 1843, Pamph. 67.

7. This power is not only one properly attached to the Judiciary, but one which has actually been attached to it generally, by the provision making jury trial inviolate, and specially, by that clothing the Superior Court with exclusive jurisdiction in all cases respecting titles to land. Cons. Ga. art. 4, sec. 5, art. 3, sec. 5; 2 Black. Com. inquest of office, 258.

8. The Act itself of 1843, is void for ambiguity patent on the face of it. Pamph. 1813, 67, sec. 3; and for that it is a revenue act and originated in the Senate. Journal of Senate, 1843: 49, 121, 172, 277, 296, 815, 355.

H. Holt & Perryman, for the defendant in error. Mr. Holt

was stopped by the Court.

Mr. Thomas, in conclusion for plaintiff in error.

The contest arose in this case between the claim of the original drawer and those claiming under him, and the lessor of the plaintiff who held under grant from the State of Georgia, authorizing the taking out of grants to forfeited draws, by any person otherthan the drawer after a given time, passed in 1843. See Acts 1843, 67, 68. The counsel for the plaintiff in error insist before the Court, that the defendant in error should fail to recover upon two grounds, viz: 1st. That the said Act of 1813 is unconstitutional, as it impairs the obligation of the private contract entered into by the State with the drawer of the lot in dispute, he having obtained vested rights under that contract, and which rights could only be divested by a competent judicial tribunal authorized to hear and determine the same, and not by an act of the Legislature, Acts 1825, 1826, Dawson\'s Compilation, 253, 259; and then not without adequate compensation on the part of the State to the drawer. And in support of this ground they read the acts of the Legislature, known as Lottery Acts, passed in 1825 and 1826, found in Dawson\'s Compilation, pages 253, 259; and 3 Story on the Constitution, 250, 661, found in the 5th art. of the Constitution amended U. S. A.; see particularly 9th section of the Act of 1826. The counsel for plaintiff in error, insists upon the Statute of limitation as barring the right of the plaintiff to recover under this grant. It is not denied that the facts of the case make out such a defence most clearly, if the law of the case is with the defendant; for the defendant and those under whom he claims, have been for more than seven years previous to the commencement of said action, in the quiet and peaceable possession of said lot of land, under color of title; holding deeds of conveyances from the drawer successively down to the defendant: and they read the Act of limitation of Georgia found in Hotchkiss\' Dig. 539, Also, insist that the Common Law maxim, "nullum tempus occurrit regi, " does not hold in this country, because it is repugnant to our constitution, laws and form of government. Hotchkiss, 93; Prince, 570; Acts 1784. And read from 12 Petersdorf Abr. 331, the case of Rex vs. Morrall, to show that even in England, the statute would create a bar; the case, being now since the issuing of the grant, between citizen and citizen, and not between the sovereign and the subject. The plaintiff\'s counsel also read, the case of Mayor of Hull vs. Horner, 1 Cowper, 102 to 110. In a case like the one at bar, supported in principle by the last case read, the Court may well presume that such long and quiet possession was founded on a grant. Id. 1 Cowper, 110.

By the Court—Warner, J., delivering the opinion.

This was an action of ejectment, instituted by the plaintiff as the lessee of Littleberry Carter, against the defendant, to recover the possession of a lot of land number 70, in the 9th district of Muscogee county and was tried at the last November Term of Muscogee Superior Court.

The plaintiff introduced in evidence a grant from the State of Georgia, bearing date on the second day of July, 1845, to the lessor of the plaintiff, Littleberry Carter, for the premises in dispute. This grant was made to Carter in pursuance of an act of the Legislature, passed on the 21st December, 1843, on the terms and conditions stated in that Act. Plaintiff then proved the tenant, Thomas Brinsfield, in possession of the premises, and the yearly value of the rent, and closed his case.

The defendant, under his plea of the general issue, and the Statute of limitations; introduced in evidence a deed to the premises, from one Alva Perry and Simon Perry, to one John Scurlock, dated 4th March, 1837, and a deed from Scurlock to one Bedford B. Brinsfield, dated 15th January, 1844, which deeds had been duly registered in the county of Muscogee. It was admitted that the land was not drawn by Carter, to whom the grant issued; but who was the fortunate drawer the record does not inform us. It was also admitted that the Perrys were in possession of the premises before and at the time of making the deed to Bedford B. Brinsfield, and that the defendant, Thomas Brinsfield, was the tenant of Bedford B. A verdict was found for the plaintiff, and the case now comes before us on a bill of exceptions and writ of error to the decision of the Court below. The errors assigned by the plaintiff are, first, because the Court below refused to charge the jury that the quiet and peaceable possession of the premises by the defendant, and those under whom he claims, holding adversely under color of title for seven years next before the commencement of the action, was a bar to said suit. Second, because the Court refused to charge the jury that the Statute of 1843, under which the grant to the plaintiff was issued, was unconstitutional. Third, because the Court refused to charge the jury that the said Act of 1843 conveyed no right to the plaintiff, inasmuch as the word "grant'' is omitted in the body of the act

We will proceed to consider the second ground first, which involves the constitutionality of the Act of 1843.

That the premises in dispute were originally the property of the State is admitted, but it is contended on the part of the plaintiff in error, that the Legislature of the State, by an Act passed on the 9th June, 1825, entitled "An Act to dispose of and distribute the lands lately acquired by the United States for the use of Georgia, &c." vested a right in the drawer of the lot in dispute; and that the Act of 1S43, authorizing a grant to issue to the plaintiff, impairs and destroys that right. That the Act of 1825 was a contract between the State and the drawer of the lot, which the Legislature of 1843 could not under the Constitution impair or defeat. If the drawer of the lot in question, by the act of giving in his name for a draw in the land lottery, added to the fact, that the lot was a prize drawn to his name, constituted a contract by which he became entitled to a vested right in the same without any other act to be done by him, then the position of the plaintiff in error is well founded in law; and it was not competent for the Legislature in 1843 to divest him of that right and authorize the grant to issue to another. Let us now examine ...