Gresham v. Webb

— Lumpkin J. By the Court. delivering the opinion. Up to 1857, in the case of Cain & Morris vs. Monroe, 23 Georgia Reports 82, fit had always been held in this State, that a conveyance of land by one against whom the land conveyed was held adversely byBclaim of title, was void. The contrary doctrine was ruled by a majority of this Court in that case. My brother Stephens who has taken the place-of Governor McDonald concurring with me, that the former adjudications were right, the old doctrine is reestablished, and I trust the rule thus resettled, will remain until changed by the Legislature; for upon this, and all other •subjects involving the very foundations to property, there •ought to be an end to questions. Nothing is more common than¡to meet with such remarks as fell from Lord Chancellor’Eldon,'in the case of Gee vs. Pritchard, (2 Sawnsf. Ch. Rep. 441.) j In the remarks of the .great English Judge, after stating the difficulty which pressed him upon the point under consideration, he'adds, “but it is my duty to submit my judgment to the authority of -those who have gone before me.” Again, “ the doctrines of ¡this Court ought to be as well settled, and made as uniform almost as those of the common laiu.” Still further, “I cannot agree that the doctrines of this Court,“are to be changed with every succeeding Judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach, that the equity of this Court varies like the Chancellor’s foot.” [322] It is for the sake of upholding the vital principle of uniformity and permanency in decisions, and not on account of the paltry gratification of my judicial pride, that I am glad to see this and all other important rules of property, steadfastly adhered to. The deed from Crow to Gresham then being void, the'defendant being in adverse possession of the premises in dispute, at the time the conveyance was executed, the plaintiff could not recover the land in his own name; neither could he amend by complaint by striking out his own name, and substituting that of Crow, his grantor, in lieu thereof. Neall vs. Robertson, 18 Ga. Rep. 399. It is argued, that Gresham having purchased and paid for the laud, he has a perfect equity, which will enable him to maintain the action. But how can a perfect equity accrue under a contract which is absolutely void ? Again, it is insisted that the deed should have been allowed to go to the jury, as the plaintiff might have shown that the possession of the defendant was not adverse when the land was sold. The plaintiff’s deed was executed in December, 1854; the suit was brought in August, 1855; and the plaintiff proves by his own witness, Mathew Reed, that the defendant had been in adverse possession, claiming the land as his own, for more than twelve months before the commencement of the action. Of course, therefore, the possession was adverse in December, 1855. when the deed from Crow to Gresham was made. f Judgment affirmed. Stephens J. concurring.