Papot v. Gibson

• Decision Date: 30 November 1849
• Docket Number: N0. 87.
• Citation: 7 Ga. 530
• Parties: Samuel N. Papot, plaintiff in error. vs. James Gibson,defendant.
• Court: Georgia Supreme Court

7 Ga. 530

Samuel N. Papot, plaintiff in error. vs. James Gibson, defendant.

N0. 87.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1849.

Trover in wilkinson Superior Court. Tried before Judge Merriwethier, October Term, 1849.

Elizabeth E. Buckley and B. D. Papot, in 1824, in contemplation of a marriage between them, entered into a contract, by whichthe negroes and other property of.Elizabeth Buckley were conveyed to a trustee, for the separate use of the wife during her life, and at her death, to the issue of the marriage. This deed was attested by two witnesses, by one of whom it was proven before the Clerk of the Superior Court of Chatham county, and admitted to record.

The husband, R. D. Papot, sold one of these negroes, July, who, after passing through several hands, was purchased by the defendant, James Gibson, for value and without notice of the deed. Samuel N". Papot, the only issue of the marriage, on his arrival of age, his mother being dead, brought an action of trover for the negro July.

On the trial, the original marriage contract being lost, a certified copy was offered in evidence. The Court rejected the evidence, on the ground that the probate was insufficient; and this is the first point brought up for review.

The Court charged the Jury, that "Robert D. Papot had no right, as natural guardian, to sell or dispose of said property; that defendant acquired no title to said property by said sale, and that the Statute of Limitations did not protect defendant; that if they believed the defendant was a purchaser for a valuable consideration, without actual notice of the marriage deed, the plaintiff could not recover." This charge is alleged, also, as error.

M. Marsh and Harden, for plaintiff in error

R. Hardeman, for defendant.

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

Elizabeth Eliza Buckley, being about to intermarry with one Robert D. Papot, executed a marriage settlement, whereby she reserved to herself a life estate in the slaves, then in her possession, with remainder in fee to the offspring of the intended nuptials. The plaintiff below, and in error, is the only issue of this marriage. The mother and Roger Olmstead, the trustee, having both died, the father sold one of these slaves, July, privately to one Zachariah M. Winkler, under whom the defendant claims, and appropriated the proceeds to his own use. Samuel N". Papot was a minor at the date of this transaction, and upon arriving at age, in-stituted trover for the property; and the questions made in the record grew out of the trial of this case.

The marriage settlement was attested by two witnesses, and proven and admitted to record, upon the oath of one of them, before the Clerk of the Superior Court. Was this authentication sufficient to admit this paper to record, so as to entitle a copy to be read in evidence, the original instrument being lost? and was the registration constructive notice to purchasers? The Court below charged the Jury, and we think, very properly, that "the deed of marriage settlement having been recorded upon probate before the Clerk, was illegally proven and improperly placed upon the record, and was no notice of the existence of the marriage contract."

All of the early Acts, regulating the registration of deeds, require them to be proved before a Judge of the Superior, Justice of the Inferior Court, or Justice of the Peace. They seem to treat it as a quasi judicial proceeding. No such authority has, by any Statute, been conferred upon Clerks; and the maxim ex pressum facit cessare tacitum, would in such case apply. It is contended that under the Judiciary Act of 1799, Clerks are empowered to ad minister oaths in all business appertaining to their office. And so they are, and. as we believe, in vacation, as well as in term time; as for instance, in receiving interrogatories, compelling securities tendered, on entering an appeal, to justify, and insolvents to swear to their pecuniary inability to give security on the appeal. In these, and such like matters, appertaining appropriately to the office of Clerk, he is clothed with authority to administer oaths; but it is no part of the Clerk's duty to authenticate conveyances, so as to fit them for registration, but only to record them when brought to him, properly proven, for this purpose. As the Clerk's office is very generally used for executing deeds and bills of sale, it would be found very convenient to delegate to this officer the power here claimed, and to make his official attestation, like that of a magistrate's, sufficient to admit a deed to record. It is competent, however, for the Legislature only to do this.

But had the law been otherwise, the decision must have been the same, namely: that the registration of the marriage settlement was not such notice as would affect any body. The law now requires marriage settlements to be recorded within three monthsfrom the execution thereof, in the Clerk\'s office of the Superior Court of the county of the husband\'s residence; and declares that if this be not done, the instrument shall not be of any force or effect against bona fide purchasers, creditors or sureties, without notice. Such, however, was not the law in 1824, when this contract was entered into. I will not say but that, like a bill of sale, or deed of gift to personal property, it might have been recorded, had it been properly authenticated before the recent Statute of 1847. But being permissive only, and not imperative, as it is now, actual notice would have been necessary. For this doctrine, as to the registration of deeds being constructive notice to all subsequent purchasers, is not to be understood of all deeds and conveyances, which may be, de facto, registered, but of such only as are...