Moody v. Bfleming

• Decision Date: 31 January 1848
• Docket Number: No. 11.,11.
• Parties: James Moody, relator. vs. William B.Fleming, Judge of the Superior Courts, Eastern District.
• Court: Georgia Supreme Court

4 Ga. 115

James Moody, relator. vs. William B.Fleming, Judge of the Superior Courts, Eastern District.

No. 11.

Supreme Court of the State of Georgia

JANUARY TERM, 1848.

This was an application, to this court for a mandamus to he directed to his Honor, Judge Fleming; founded on a refusal by him to grant, on the application of the relator, a mandamus, to be directed to the county surveyor of Liberty county, William Hughes, commanding him to certify and send up, as county surveyor, a survey made by his deputy, under a head right warrant, issued in favor of the relator.

The grounds taken in the application to the court below, and the reason of Judge Fleming for refusing the application, are sufficiently set out in the opinion to the court.

Wm. B. Gaulden, for the application.

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

The petition before Judge Fleming for a mandamus against William Hughes, discloses the following facts:

The relator, James Moody, under a warrant from the Land Court of the county of Liberty, caused a certain tract of land, containing some seven hundred acres, to be surveyed by the deputy of the county Surveyor for that county, as vacant land. The survey was returned by the assistant Surveyor to his principal, the county Surveyor, who upon application for that purpose by the relator, refused to certify and transmit the same as the law directs to the Surveyor General. William Hughes, the county Surveyor, as the petition states, declining so to certify and send up the survey, because one Dempsy Griffin was in possession of the land under a grant from the State of Georgia. and had been in possession more than seven years from the date of the grant. The petition further states that the grant to Griffin from the State is illegal and void, because it was issued upon a survey made by the county Surveyor of Tattnall county, upon a wrrant which issued from the Land Court of that county.

Judge Fleming declined issuing the writ, upon the grounds thai lands subject to survey and to be granted on head rights, by the laws of the State, must be vacant land—that inasmuch as the petition discloses the fact, that the land was in possession of a grantee from the State of Georgia, and had been in his possession for more than seven years; his title was perfect under the statute of limitations, and that therefore, the land could not be considered vacant land. Exceptions are taken to this decision, and in support of them, it is argued that the grant from the State was issued illegally; and that possession under an illegal grant is not such adverse possession as will create a title under the statute of limitations. That the writ of mandamus issues in the name of the State, and the contest for this land, therefore, is between the State of Georgia and a tenant in possession under a void grant, and as the statute does not run against the State, the tenant is not protected by it. The judgment of the Court below is affirmed for the following reasons:

Whilst this Court has the power to review the judgment of a Circuit Court on a matter wherein that Court is by law left to a sound legal discretion, yet it will control that discretion only in cases where there is a refusal to exercise, or a flagrant abuse of it.

The writ of mandamus is a prerogative writ, and does not issue as mere matter of right.

We have ruled that it is in the nature of an action when issued, (1 Kelly, 273, 274,) yet is grantable within the discretion of the Court. To say the least of it, it is unquestionably within the discretion of the Court to withhold it in cases where the relator fails to make out a prima facie case —a fortiori, it is within the discretion of the Court to withhold it in cases where he makes out a prima, facie case against the right which he sets up. Such, we think, is the present case. We would, however, not be understood to say that the Courts in this country could refuse this writ when demanded by a person holding a clear legal right under the laws of the State, with noother remedy to enforce it. In such a case the law and the right of the citizen would be imperative upon the court. The Judge presiding in this case, believed that the relator had not made out prima facie case of right. We think he might have gone farther, and said that the case is prima facie against his right. For his petition shows that the land, the survey of which he seeks to have certified, was in the possession of a third persons, under a good title, and therefore not vacant land. If it was not vacant land he is not entitled to its survey and the certificate of the survey.— Hotchkiss, 382, 385, Sects. 7 and 24. If, indeed, his certificate were had, we do not perceive that it could avail him against a good title in the tenant. This is not therefore a case of flagrant abuse of discretion. I proceed, however, to examine more minutely, the judgment of the court, and the reasoning of counsel against it.

It assumes that seven years' possession under color of title, in Georgia, is good title. Without now going at large into one of the most doubtful and litigated questions Of the science, to wit, what amounts to adverse possession, it is sufficient for the requirements of this case, to say, that adverse possession for seven years, is a good title by operation of the statute of limitations,

And farther, that possession commencing and continuing for that term of years, under color and claim of title, is adverse possession, and that whatever else may or may not amount to color of title, [6.] a grant from the State is color of title. The tenant in this case, went into possession under the highest evidence of title, the State's grant. And as the primary and absolute dominion over this land was in the State, and as it does not appear that her title had ever passed to any other person, we must conclude that the possession was adversary to all the world. See Angell on Limitations, 410 to 455. Tillinghast's Adams, 46 to 50. Appendix, note A.

Are there any facts or principles in this case which prevent the operation of the rule thus laid down as to possession under color of title? [7.] It is insisted, that here, the State is a party, moving the contest, and setting up a right to have this survey certified, and that the tenant will not be protected by his possession; because the statute of limitations does not run against the State. We have decided, and the decision is sustained by unbroken masses of authority, that the Statutes of Limitation do not run against the State. Brinsfield tit. Garter, 2 Kelly, 150, 151. The answer, however, to this argument, is this. The State of Georgia is not the real party to the proceedings. She is not asserting any right, and is not before the Court, the petition for a mandamus is by a private individual, and it was upon that petition alone, that the decision complained of, was made._ But if the writ had issued, and the writ of error was founded upon alleged errors, in a judgment growing out of the writ and the return, then the State would be no party. The process, it is true, is in the name of the State, but the right asserted is a private right; the issue is between two of the citizens of the State. I have already stated, that this Court has determined that a proceeding by mandamus, upon the relation of a private person, is in the nature of a suit. It is in England called a prerogative writ. It is there held the process by which the Crown exerts a high prerogative, through the Courts of Justice. The prerogative of asserting for the subject a right width could not be otherwise asserted or enforced. This prerogative here belongs to the people. They exert it through their Courts of Justice by using the name of the State. And although the writ of mandamus is governed by principle peculiar to itself, yet to all practical intents and purposes, it is a suit. In this view of the subject, we conclude that the maxim "nullum tempus occurrit regi, " has no relevancy.

With greater plausibility it is contended that possession originating under a void grant and so continuing, does not create a title under the Statute of Limitations. The record does not show that there is any thing upon the face of the grant to Griffin which makes it void, nor does it charge that it was procured to be issued by a fraud to which he was a party. It is said to have issued illegally in this, that it was issued upon a survey made by the Surveyor of Tatnall county, upon a warrant which proceeded from the Land Court of that county. The tenant therefore, is taken to have received it and entered on the land under it, bona fide. His possession throughout is in good faith. This is a case where there could be no disseisin of any body. As before suggested, the eminent domain being in the State, and she having parted with it to the tenant and to no one beside, and the possession having continued uninterrupted for seven years, it is hard to conceive how the title can be otherwise than good against the world. We give no opinion as to how far the rights of the State herself would go to set aside her grant, in a proceeding institutedby herself for that purpose. It may be, however, well doubted whether she could set aside this grant, and reassert her original property in the land, because of a mere irregularity in the survey.

We might. I think, rest our opinion upon the undisputed fact, that this land had been appropriated by color of law. and was not vacant land in fact. If it was not vacant land, the Surveyor had no right to survey it, and being surveyed by his assistant, he was not bound to certify it. Before it could be re-surveyed, would it not be necessary to make it vacant by a revocation of the grant?

We however meet the question made by the record, and return to the inquiry whether possession under a void grant can ripen into a title. For the purposes of the argument, we assume that the grant is not only voidable but void. It is true that there are highly respectable authorities...