Tucker v. Harris

• Decision Date: 28 February 1853
• Docket Number: No. 1.,1.
• Citation: Tucker v. Harris, 13 Ga. 1, 58 Am.Dec. 488 (Ga. 1853)
• Parties: Milton P. Tucker, plaintiff in error. vs. Stephen Harris, defendant in error
• Court: Georgia Supreme Court

13 Ga. 1

Milton P. Tucker, plaintiff in error. vs. Stephen Harris, defendant in error

No. 1.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1853.

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[COPYRIGHT MATIIAL OMITTED.]

Ejectment, in Meriwether Superior Court. Tried before Judge Hill. August Term, 1852.

This action was brought by the defendant against the plaintiff in error for the recovery of lot of land number 112, in the seventh district of Meriwether County. Several demises were laid in the declaration; both parties, however, claimed title through one Howell W. Jenkins.

On the trial, plaintiff read in evidence the grant from the State of Georgia to Stephen Harris, dated 21st day of February, 1828, to the lot of land in dispute, and closed his case.

The defendant then read in evidence a deed from Harris to James B. Caswell, made in 1828, and one from Caswell to Howell W. Jenkins, made in 1829, and one from Jenkins to John Burke, a co-defendant, dated on the 9th day of June 1829, and recorded on the 15th day of February, 1840, and closed.

The plaintiff then proposed to read in evidence the following orders, passed by the Inferior Court of Troup County, sitting as a Court of Ordinary, the first on the 4th day of September, 1837, and the second on the seventh day of May, 1838.

1st. "Upon the application of Daniel S. Robertson, and after due and legal notice, ordered that he be, and is hereby appointed administrator on the estate of Howell W. Jenkins, late of this County, deceased, upon his giving bond in the sum of $25,000, with John E. Morgan as his security, " and that letters of administration issue to him accordingly."

2d. "Upon the application of Daniel S. Robertson, administrator of Howell W. Jenkins, deceased, for leave to sell the real estate and negroes belonging to said deceased's estate, and he having published the same in terms of the law.

"It is ordered that the said administrator have leave to sell the estate, both real and personal, of Howell W. Jenkins, deceased, in terms of the law made and provided."

Plaintiff also proposed to read at the same time a copy ofthe bond, made by Jenkins, with Morgan as security, in conformity with the first order.

To the introduction of these orders and bond, bearing date on the same day the order was passed, and for the same amount, and with the same security therein, defendants objected, on the grounds:

1st. Because it did not appear that Daniel S. Robertson had complied with said order, and obtained said letters, or to be entitled thereto.

2d. Because it did not appear from the second order, authorizing the sale of deceased's property, the object for which it was sold; that the Court of Ordinary, being a Court of limited jurisdiction, should appear affirmatively upon the face of said order, that it was made fully and plainly to appear to said Court that said contemplated sale was for the benefit of the heirs and creditors of said estate, and that in absence of a recital of these facts in the order, the Court would not presume that it was made to appear by evidence to said Court of Ordinary that the sale was for the above object, and that a recital of these facts in the order, would only be prima facie evidence that they were made to appear."

3d. Because it nowhere appeared from the Clerk's certificate or other legal evidence, that the said Daniel S. Robertson complied with the order of said Court, by giving the bond required, and that he was sworn and qualified in open Court."

The Court overruled the objections, and allowed the orders and bond to be read in evidence, and defendant excepted. The plaintiff then read in evidence a deed from Robertson, as administrator of Jenkins, to Samuel W. Darden, dated the 7th of August, 1838, and recorded on the 18th day of October, 1838.

The Court charged the Jury, "that the deed made by Robertson, as administrator, to Darden, was entitled to preference over the one made by Jenkins to Burke; the former, though the youngest deed, being recorded within twelve months from its execution, and the latter not recorded within the time prescribed by law.

The Court further charged the Jury, "that it was necessary that it should be shown to the Court of Ordinary that the contemplated sale should be for the benefit of the heirs and creditors of the estate, but that it was not necessary for it to appear upon the face of the order to sell, that it was made to appear to the Court, but that the Jury would presume that it was made, " &c.

To which charges counsel for defendants excepted, and upon these exceptions has assigned error.

Tidwell & Fuller, for plaintiff in error.

O; Warner, for defendant in error.

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

As both plaintiff and defendant claim from Howell W. Jenkins, it is unnecessary to trace the title to the land in dispute back of him. Jenkins sold the lot in his life-time to John Burke, one of the defendants in ejectment, by deed bearing date the 9th of June, 1829, but not recorded until the 15th day of February, 1840. After the death of Jenkins, the lot was again sold by Daniel S. Robertson, his administrator, and a deed was executed to Samuel Darden, the lessor of the plaintiff, on the 7th of August, 1838, which last deed was recorded the 18th of October, 1838.

Apart from other considerations, which of these conveyances is entitled to priority, under the Registry Acts of this State?

The Act of 1837 provides that " in all cases where two or more deeds shall hereafter be executed by the same person or persons, conveying the same premises to different persons, the one recorded within twelve months from the time of execution, (if the feoffee have no notice of the prior deed unrecorded at the time of the execution to him or her) shall have preference." New Dig. 175.

In Ellis vs. the lessee of Smith, (10 Geo. Rep. 253) this Court held, that a purchaser at Sheriff\'s sale who has his deed first recorded, will gain the same preference over an unrecorded deed, as if he had bought directly from the debtor himself. The rule and the reasoning in that case apply with full force to a purchaser at an administrator\'s sale. See also 5 Miss. 387. 1 Green. 43. The Act of 1837 established no new principle upon this subject, but was declaratory only. The priority there given, had been the settled doctrine of the Courts of Georgia, certainly from the organization of our State Government, and was probably coeval with the provincial Act of 1755, requiring all conveyances of land to be recorded within a limited period, and on failure, to be deemed and construed to be void and of no effect. Marhury and Crawford\'s Digest, 111. Harrison vs. Neal, Dudley\'s Rep. 168. By the Registry Acts of England, as expounded by the Courts of that country, grantees in a deed executed after, but recorded before another conveyance of the same land, being bona fide purchasers without notice, are deemed to have the better title. See Brown vs. Jackson, 3 Wheat. 449. 4 Cond. Rep. 291.

But had the rule been established for the first time by the Act of 1837, giving preference to the deed first recorded, the Courts would construe it to extend to conveyances made previous to its passage; as Registry Acts having a retrospective operation, have never been considered as falling within the constitutional inhibition against ex post facto laws and laws impairing the obligation of contract. 2 Yerger's Rep. 125. Ib. 260. In Jackson vs Lamphire, (3 Peters' Rep. 280), the Court held that State Legislatures had the undoubted right to pass recording Acts, by which the elder grantee should be postponed to a younger, if the prior deed was not recorded within a limited time. Had the Act of 1837 been passed to take effect instanter, and been made to apply to antecedent conveyances, and had not allowed a reasonable time after its enactment to record existing deeds, such an Act would be unconstitutional. But here a reasonable time was allowed. The Act passed in December, 1837, and the prior deed was not made until August, 1838, nor recorded until the month of Oc-tober thereafter. Up to August, 1838, (some eight months,) the deed from Jenkins to Burke was not only good as between them, although executed in 1829, but was valid against all the world. For although not recorded within the time prescribed by law, still if it had been recorded before the sale by Robertson, the administrator, the first deed would have prevailed.

The other question made by the bill of exceptions is one of much more difficulty and importance.

We do not doubt the validity of Robertson's appointment, as administrator. The proper construction of the order is, that it is absolute, not conditional. It is that Robertson, " be and he is hereby appointed, etc." and his official bond is produced, corresponding in date, amount, the name of the security and every other particular with the order. We presume that it was given in open Court at the time the order was passed, and that the applicant was then and there duly qualified in terms of the law.

The difficulty arises as to the sufficiency of the second order, directing a sale of the land in controversy.

The argument in behalf of the plaintiff in error is, that the Court of Ordinary being a Court of limited jurisdiction, all the facts which are necessary to give it jurisdiction, should affirmatively appear upon the face of its proceedings.

And we recognize the rule, that nothing is to be intended in favor of jurisdiction. But if the jurisdiction is shown, everything will be intended in favor of the judgments rendered by Courts; and they must be taken to have judged Tight unless the contrary appears. Willes, 416. 8 T. Rep. 181, 182.

The line of demarcation between Courts of general and limited jurisdiction is not so definite, however, as is generally supposed. It is usual to state what particular Courts fall within the one class, and what within the other. But what author has undertaken to mark with accuracy and precision the boundary between the two? Bacon has not, nor...