Redwine v. Others

• Decision Date: 31 August 1851
• Docket Number: No. 42.,42.
• Citation: 10 Ga. 311
• Parties: Lewis Redwine, plaintiff in error. vs. WM. B. Brown and others, defendants.
• Court: Georgia Supreme Court

10 Ga. 311

Lewis Redwine, plaintiff in error. vs. WM. B. Brown and others, defendants.

No. 42.

Supreme Court of the State of Georgia

AUGUST TERM, 1851.

In Equity, in Coweta Superior Court. Tried before Judge Hill, March Term, 1851.

This bill was filed 1o enjoin an action of ejectment, for the recovery of lot of land No. 161, in the first district of Coweta County. The bill alleged, that in the land lottery authorized by the Act of 1825, disposing of the territory lying between the Flint and Chattahoochee rivers, James St. John, one of the defendants, drew the said lot of land, for which a grant issued in 1827; that St. John sold and conveyed the land to Michael Madden; that Madden conveyed it to Giles B. Taylor; Taylor to Shadrach Perry; Perry to John Redwine; John Redwine to Lewis Redwine, the complainant, and the latter to David Dominick, who died, seized of the land; that the administrator of Dominick, sold the same regularly, to Sterling Elder, who went into possession, and made valuable improvements; that the deeds were all duly recorded, and contain warranties in the usual form, except the deeds from St. John to Madden, and Madden to Taylor, which contain no warranty.

The bill alleges, that owing to the fact, that the deed from St. John to Madden, is defective in its probate, (having been admitted to record without an affidavit from either of the witnesses,) and the witnesses being dead, complainant is unable to prove the execution of the deed, without an appeal to the conscience of St. John.

That William B. Brown, with full knowledge and actual notice of the facts, has combined with St. John, to defraud and eject Elder, and for some inconsiderable sum, has induced St. John to execute to him a deed to the land; and that Brown is now using the name of St. John, to recover said land in an action of ejectment against Elder, and in which action complainant was made a co-defendant by order of the Court.

The bill prays that the deed from St. John to Brown, be de-clared fraudulent and void, and be delivered up to be cancelled, or that Brown be decreed a trustee for Elder, and those under whom he claims, and ordered to convey his title to Elder, and thus quiet his possession; and that the action of ejectment be perpetually enjoined.

Brown filed a demurrer to the bill, with specifications.

The Court sustained the demurrer, and dismissed the bill, and counsel for complainant excepted.

B. H. Hill, for plaintiff in error.

Morgan, for defendant.

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

Lewis Redwine filed his bill in the Superior Court of Coweta County, stating that under the Lottery Act of 1825, disposing of that portion of the territory of Georgia, which lies between the Flint and Chattahoochee rivers, one James St. John drew lot No. 161, in the 1st District of said County, and that the same was granted to him by the State, on the 11th day of October, 1828; that on the 20th of the same month and year, St. John conveyed the land to one Michael Madden; that shortly thereafter, Madden conveyed to one Giles B. Taylor; these deeds contain no covenant of the warranty of title; that in October, 1829, Taylor conveyed with warranty, to one Shadrach Perry; that in June, 1831, Perry conveyed with warranty, to John Redwine; and that John Redwine, in September, 1831, conveyed with warranty, to Lewis Redwine, the complainant; that Lewis Redwine afterwards sold and conveyed the land, with warranty, to one David Dominick, who having died intestate, the land was regularly sold and conveyed by his administrator, to one Sterling Elder; all the deeds were duly recorded in the proper office; that Elder took actual possession of the land, and made valuable improvements thereon. The bill alleges that the title was well known and recognized by all persons, previous to that time. The bill further charges, that one William B. Brown, with a fulland actual notice of all the facts, and especially of the purchase and claim of the said John and Lewis Redwine, as well as the possession of the said Elder, combining with St. John, the grantee, to injure and defraud the complainant, for some nominal or inconsiderable sum, bought the lot of land of the said St. John, and took from him a deed, or some other written conveyance of the property. It alleges that St. John and Madden are insolvent, and that Madden resides beyond the jurisdiction of the State, so that neither of them can be made answerable in damages for the loss of the land, and that the said confederates are prosecuting an action of ejectment in the name of the said St. John, against the said Elder and the complainant, who was made a co-defendant thereto by order of the Court. The bill further states, that the two witnesses to the deed from St. John to Madden are dead, and that the complainant cannot adduce proof of its execution, without appealing to the conscience of the said St. John. The bill prays that the deed from St. John to Brown, may be decreed to be fraudulent and void, and delivered up to be cancelled, or that Brown be adjudged to be a trustee for the said Elder or the complainant, and be compelled to convey to Elder, and that the action of ejectment may be perpetually enjoined.

To this bill, Brown filed a general demurrer, for want of equity, with specifications. The Court sustained the demurrer, and ordered the bill to be dismissed on two grounds, to wit:

1st. Because Lewis Redwine, not being the landlord of Elder, he ought not to have been made a co-defendant in the action at Law.

2dly. Because Elder, having purchased at administrator's sale, under the doctrine of caveat emptor, and because the administrator could make no assignment of the warranty from Redwine to Dominick, would not be liable to Elder, in case of eviction, and consequently had no such interest as would entitle him to maintain the bill; whereupon, complainant, by his counsel, excepted.

Three questions are made by the record:

1st. Was Lewis Redwine properly made a co-defendant in the ejectment?

2dly. Could the order making him a co-defendant, be impeached by demurrer to the bill?

3rdly. Had Lewis Redwine such an interest in the subject matter, as would enable him to apply to a Court of Equity for relief?

The first question will be answered by the construction to be given to the Act of 11. Geo. 2 Ch. 19, passed A. D. 1738, to prevent frauds by tenants. (See Schley's Digest, 374.) By the 13th section of this Act, landlords are empowered to make themselves defendants, by joining with the tenants. Does this provision embrace previous warrantors of the title, who would be liable for damages in case of eviction?

The uniform practice in this State, has been to allow all such to come in and defend; and it orginated no doubt, in the decision made by the Court of King's Bench in England, upon that Statute, as early as 1762, in which, after mature consideration, the term landlord, was extended beyond its strict import, and made to include every person whose title is connected to or consistent with the possession of the occupier, and which would be divested or disturbed by any claim adverse to such possession. Fairclaim ex dismiss, Fowler et al. vs. Shamtotle, 3 Burrows' Rep. 1290.

In conformity with this explanation of the Statute, remaindermen, devisees in trust, mortgagees and infants, and " all other proper persons, " to use the language of one of the laws, have been admitted to defend. Nor do we see any inconvenience or injustice that is likely to result from this exposition of the enactment. Lord Mansfield assigned this very satisfactory reason for its adoption; that where there is a privity of interest, letting in the person behind, may operate to prevent treachery and confusion.

By making himself a party, the warrantor cannot urge as a defence any matter which the law did not previously recognize as available, to defeat a recovery by the plaintiff. The construction does not affect the parties' rights; it relates only to the rem-edy; in fact it affects nothing more than the substitution of one defendant or tenant for another.

Mr. Justice Wilmot, in the case just cited, observed that it was very remarkable that the different Acts of Parliament had been made at near 500 years distance upon the very same subject, when there was no occasion for either, viz: the Statute of Westminster, 2 ch. 3, (13 Ed. I. A. D. 1285,) and this Act of 11. Geo. 2 ch. 19. The first of these he said, was no new provision; for before that time all those that stood behind the tenant in possession had always a right at Common Law to come in and be received, pro interesse suo, to defend the possession, which was very material to them, and by the change whereof, they would have been greatly incommoded, and he refers to Coke's Inst, v. 2, 344, 345, and Braeton, lib. 5, fo. 393, b.

And Lord Mansfield during the progress of the argument, asked the Court on both sides, if they had found any case prior to that of Goodright vs. Hart, et. ux. 2 Strange, 830, 2 Geo. 11. where the Court had refused to let in persons who stood behind the tenant in possession, to defend, pro interesse suo, in the stead of the tenant in possession? And they all answered, " none at all."

It would seem, therefore, that the practice had always been in England, as is contended for by the counsel for the plaintiffs in error, and that it was this " hasty" adjudication reported by Sir John Shorry, where the Court refused to permit Hart and wife to be made co-defendants, because the tenant in possession would enter no appearance or make any defence, which occasioned the clause in the Act of Parliament which we have been considering, and which was construed by the Courts in the spirit of the liberal practice which had previously obtained.

Having ruled the first point in favor of the plaintiff in error, it is unnecessary to advert to the second, except to say, that had our judgment upon the first point been the other way, we are clear that the order making Lewis...