Beatty v. Benton

73 Ga. 187

• Court: Supreme Court of Georgia
• Decided: January 6, 1885
• Status: Published

Opinion

Jackson, Chief Justice.

This is a bill filed by Fanny Gardner against Frances Beatty and children, to settle her title to one-half of a lot in Augusta, occupied by her, while Frances occupied the other half. The lot was bought by Thomas Gardner, deceased. in 1854, and one-half the purchase money was -paid by him, and the other half by complainant, who was his wife. Frances, the defendant, was the daughter by a former wife of deceased, and married Beatty afterwards. Up to that time, the lot was one, only one house being on it, then it became crowded, arid was divided, and a house built for Beatty and wife, who occupied it ever since. All the parties were free persons of color before the war. When the purchase was made in 1854, a deed was taken to the property in the name of Robertson, trustee,-a white person, to the use of Fanny and Frances for life, and then to the next of kin of Thomas Gardner. If that trust deed was valid when made, the complainant only had a life estate, and having died and left a will since this writ of error was brought, she and her testatrix now can take nothing. So that the verdict and decree being that she shall keep the half set apart to her in the division, and so long in her possession, is wrong, if that trust deed be operative.

.1. Under the decision of this court, in Swoll et al. vs. Oliver et al., 61 Ga., 248, that deed, as the law of Georgia stood in 1854, was void. So in the Planters’ Loan and Savings Bank vs. Johnson et al., 70 Ga., 302 (an Augusta case), the same point is decided emphatically, based on the act of 1818, Cobb’s Digest, p. 993. Therefore the trust deed is out of the way.

2. When the law freed slaves in Georgia and put free persons of color, as to real property, on the same footing as whites, this lot, as divided, was in possession of these two colored women, a moiety with a house on it, erected by the husband and father, in possession of each. The primary element of title, possession, being thus in each, and the state never having escheated the property whilst the old law stood, this possession is good against the claim of all others, and the verdict and decree giving each her several share is right.

3. The decree is all the more equitable, because complainant paid one-half of the purchase money. Oases of this sort, under the anomalous condition of such property remaining in the possession of a class of persons who could notformerly hold title thereto, should be adjudicated under broad views of natural equity.

There is nothing in the minor points made by the able and indefatigable counsel for plaintiffs in error which can unsettle the result which the above principles necessitate, we think, as the law of this case.

Judgment affirmed.