By the Court. —
Benning, J.
delivering the opinion.
Was the Court below right in granting the motion for a new trial ? This is the only question.
If any one of the grounds of the motion was sufficient, the Court was right in granting the motion.
I proceed, then, to notice those grounds, in their order
The first ground ivas this: u The Court refused to charge the jury, as requested, by defendant’s counsel, that the plaintiff cannot recover by showing, that the grant issued, by mistake, to a wrong name; but charged the jury, that the plaintiff cannot recover by showing, that the grant issued, by mistake, to a wrong-person; but, if they believe from the evidence, that the Eli Nicks of plaintiff’s deed, and the Elias Nicks of the grant, were one and the same person, then the plaintiff could recover.”
What the Court did, according to this ground, amounted to telling the jury, that if there was a person named Eli Nicks, and not named Elias Nicks, and if the grant was made to that person, but, by mistake, was made to him in the name, Elias Nicks, instead of, being made to him in the name, Eli Nicks, and he made the deed to Henderson, then, the plaintiff was entitled to recover; but, that if there was one person named Eli Nicks, and another person named Elias Nicks, and the one of these two persons entitled to the grant, was the one named Eli Nicks, and yet, that, by mis[388]*388take, the grant was made, not to him, but to the person named Elias Nicks, then, that the plaintiff was not entitled to recover. The exception, of course, is to the first part of this — the part which gives the plaintiff a chance to recover.
The evidence was such, that it tended to show, that there was a person known to his neighbors as Eli Nicks, and not known to them as Elias Nicks; and, to show, that that person was the person to whom the grant was made, although it was made to him, as Elias Nicks; and also, to show, that that person was the person who, in the name, Eli Nicks, made the deed to Henderson. And there was no evidence tending to show, that there was one person named Eli Nicks, and another named Elias Nicks, except the evidence furnished by the fact, that the grant, and the deed to Holcombe, used the name Elias Nicks.
Now the objection to this part of the charge, if I understood the argument for the defendant in error aright, was, that it was founded upon that portion of this evidence which tended td show that the person called in the grant, Elias Nicks, and the person called in the deed, Eli Nicks, were one and the same person; and that that portion of the evidence was illegal.
Assuming that to be the objection, the question is, was that portion of the evidence illegal?
This Court has once decided that it was not. Doe ex dem. Henderson vs. Roe and Hackney, 16 Ga. 524-5.
But, it was insisted, that there were two other decisions of this Court, according to which, the evidence was illegal. These were Tison and others vs. Yawn, 15 Ga. R. 495, and Sykes vs. McRory, 10 Ga. 470.
And I must say for myself, that in my opinion, the evidence was illegal if tried by these two decisions; but! must also say, that, in my opinion, the two decisions were wrong.
The later of these two decisions, is founded exclusively upon the earlier ; it takes no notice of an intermediate decision, [389]*389which, I think, is contrary to the earlier; I mean the decision in Greene vs. Barnwell et al, 11 Ga. 284.
These two decisions, as I think, are not only contrary to that intermediate decision, and to the decision made in this same case, when it was up before, (supra) a decision later than either of these two, but they are, as I think, contrary to a perfectly established rule of law — the rule which says, that parol evidence may be used to identify person or thing, mentioned in a written instrument. This is a rule which, so far as I know, is without exception. And, it is a rule the object of which, is, not to pervert written instruments, but to prevent written instruments from being perverted.
These two decisions, then, are, in my opinion, to be utterly disregarded.
[1.] This Court, in respect to the present question, repeats its former decisions, and holds, that the part of the evidence under consideration, was not illegal.
The next two grounds of the motion, are so nearly the same as the first, the one just considered, that they must share its fate.
The next two grounds of the motion, the fourth and the fifth, amount to this: that the Court told the jury the opposite of what it was requested to tell them; viz: told them, that if the deed to Henderson, and the deed to Holcombe, were made by one and the same person, and the grant had issued, or the grant fee been paid by the grantee, after the making of the deed to Henderson, but before the making of the •deed to Holcombe, the payment of the grant fee, or the issuing of the grant, vested the legal title in the grantee, and that title inured to the benefit of Henderson, and his was the better title.
This is a charge that was to have effect, on the hypothesis, that there has been but one Nicks; that he was the drawer of the lot of land; and consequently, that he was the person entitled to a grant for the land, on payment of the grant fees. Net us assume this to be the true hypothesis.
[390]*390In that case, what was the interest which Nicks had in the land, after he drew it, and before it was granted to him? It was the equitable interest in the land. And where was the rest of the interest in the land — the legal interest? The State had it. And this legal interest, the State held, as security for the payment of the grant fee. Winter vs. Jones, 10 Ga., 202, 205, 12 Ga. 340. The State thus holding the legal interest for that purpose, the statute of uses did not operate upon that interest, and merge it in the equitable interest.
I must remark for myself, however, that I extremely doubt whether the drawer of a lot in any of our land lotteries, is not vested with the whole interest, both legal and equitable, in the lot, subject .to be divested on his failure to pay the grant fees. The Constitution has in it these words: "And this Convention doth further declare and assert, that all the territory within the presen1 temporary line, and within the limits aforesaid, is now of right the property of the free citizens of this State, and held by them in sovereignty inalienable except by their consent.” Art. II, Sec. 23. What is our lottery system but a mode of partition of this "property of the free citizens,” among those citizens ?
Say however that it is only the equitable interest that passes into the drawer, and that the legal interest remains in the State, as security for the payment of the grant fee. Then what will follow so far as the present case is concerned?
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By the Court. —
Benning, J.
delivering the opinion.
Was the Court below right in granting the motion for a new trial ? This is the only question.
If any one of the grounds of the motion was sufficient, the Court was right in granting the motion.
I proceed, then, to notice those grounds, in their order
The first ground ivas this: u The Court refused to charge the jury, as requested, by defendant’s counsel, that the plaintiff cannot recover by showing, that the grant issued, by mistake, to a wrong name; but charged the jury, that the plaintiff cannot recover by showing, that the grant issued, by mistake, to a wrong-person; but, if they believe from the evidence, that the Eli Nicks of plaintiff’s deed, and the Elias Nicks of the grant, were one and the same person, then the plaintiff could recover.”
What the Court did, according to this ground, amounted to telling the jury, that if there was a person named Eli Nicks, and not named Elias Nicks, and if the grant was made to that person, but, by mistake, was made to him in the name, Elias Nicks, instead of, being made to him in the name, Eli Nicks, and he made the deed to Henderson, then, the plaintiff was entitled to recover; but, that if there was one person named Eli Nicks, and another person named Elias Nicks, and the one of these two persons entitled to the grant, was the one named Eli Nicks, and yet, that, by mis[388]*388take, the grant was made, not to him, but to the person named Elias Nicks, then, that the plaintiff was not entitled to recover. The exception, of course, is to the first part of this — the part which gives the plaintiff a chance to recover.
The evidence was such, that it tended to show, that there was a person known to his neighbors as Eli Nicks, and not known to them as Elias Nicks; and, to show, that that person was the person to whom the grant was made, although it was made to him, as Elias Nicks; and also, to show, that that person was the person who, in the name, Eli Nicks, made the deed to Henderson. And there was no evidence tending to show, that there was one person named Eli Nicks, and another named Elias Nicks, except the evidence furnished by the fact, that the grant, and the deed to Holcombe, used the name Elias Nicks.
Now the objection to this part of the charge, if I understood the argument for the defendant in error aright, was, that it was founded upon that portion of this evidence which tended td show that the person called in the grant, Elias Nicks, and the person called in the deed, Eli Nicks, were one and the same person; and that that portion of the evidence was illegal.
Assuming that to be the objection, the question is, was that portion of the evidence illegal?
This Court has once decided that it was not. Doe ex dem. Henderson vs. Roe and Hackney, 16 Ga. 524-5.
But, it was insisted, that there were two other decisions of this Court, according to which, the evidence was illegal. These were Tison and others vs. Yawn, 15 Ga. R. 495, and Sykes vs. McRory, 10 Ga. 470.
And I must say for myself, that in my opinion, the evidence was illegal if tried by these two decisions; but! must also say, that, in my opinion, the two decisions were wrong.
The later of these two decisions, is founded exclusively upon the earlier ; it takes no notice of an intermediate decision, [389]*389which, I think, is contrary to the earlier; I mean the decision in Greene vs. Barnwell et al, 11 Ga. 284.
These two decisions, as I think, are not only contrary to that intermediate decision, and to the decision made in this same case, when it was up before, (supra) a decision later than either of these two, but they are, as I think, contrary to a perfectly established rule of law — the rule which says, that parol evidence may be used to identify person or thing, mentioned in a written instrument. This is a rule which, so far as I know, is without exception. And, it is a rule the object of which, is, not to pervert written instruments, but to prevent written instruments from being perverted.
These two decisions, then, are, in my opinion, to be utterly disregarded.
[1.] This Court, in respect to the present question, repeats its former decisions, and holds, that the part of the evidence under consideration, was not illegal.
The next two grounds of the motion, are so nearly the same as the first, the one just considered, that they must share its fate.
The next two grounds of the motion, the fourth and the fifth, amount to this: that the Court told the jury the opposite of what it was requested to tell them; viz: told them, that if the deed to Henderson, and the deed to Holcombe, were made by one and the same person, and the grant had issued, or the grant fee been paid by the grantee, after the making of the deed to Henderson, but before the making of the •deed to Holcombe, the payment of the grant fee, or the issuing of the grant, vested the legal title in the grantee, and that title inured to the benefit of Henderson, and his was the better title.
This is a charge that was to have effect, on the hypothesis, that there has been but one Nicks; that he was the drawer of the lot of land; and consequently, that he was the person entitled to a grant for the land, on payment of the grant fees. Net us assume this to be the true hypothesis.
[390]*390In that case, what was the interest which Nicks had in the land, after he drew it, and before it was granted to him? It was the equitable interest in the land. And where was the rest of the interest in the land — the legal interest? The State had it. And this legal interest, the State held, as security for the payment of the grant fee. Winter vs. Jones, 10 Ga., 202, 205, 12 Ga. 340. The State thus holding the legal interest for that purpose, the statute of uses did not operate upon that interest, and merge it in the equitable interest.
I must remark for myself, however, that I extremely doubt whether the drawer of a lot in any of our land lotteries, is not vested with the whole interest, both legal and equitable, in the lot, subject .to be divested on his failure to pay the grant fees. The Constitution has in it these words: "And this Convention doth further declare and assert, that all the territory within the presen1 temporary line, and within the limits aforesaid, is now of right the property of the free citizens of this State, and held by them in sovereignty inalienable except by their consent.” Art. II, Sec. 23. What is our lottery system but a mode of partition of this "property of the free citizens,” among those citizens ?
Say however that it is only the equitable interest that passes into the drawer, and that the legal interest remains in the State, as security for the payment of the grant fee. Then what will follow so far as the present case is concerned?
Assuming this to be the true principle, then, in the present case, after the lot was drawn, and before the grant was issued, the equitable title was in Nicks, and the" legal title was in the State — in the State for the use of Nicks on his paying the grant fee.
Now this equitable title was a transferable title. Even a chance for a draw in the lottery was transferable. Dugas vs. Lawrence, 19 Ga. 557.
It is true, that in Garlick vs. Robinson, 12 Ga., 340, this Court held, that an equitable interest of this kind, was not subject to sale under Jz. fa.\ but this Court has never held, [391]*391that such an interest was not transferable.
And this equitable title or interest in Nicks, was transferred — transferred by him to Henderson.
In this way, the equitable interest became vested in Henderson, the legal interest still remaining in the State, but remaining there for the use of Henderson, on Nicks’s paying the grant fee.
Whilst the equitable interest was thus vested in Hender^ son, the grant was issued to Nicks. Thereby, the legal ti.tle passed from the State into Nicks. But before the grant could issue, the grant fee had to be paid to the State; and when that was paid to the State, the lien on the land for the fee, became extinguished.
Consequently, when the legal title passed to Nicks, it conferred upon him no right to hold the land as security for the grant fee.
Again, Nicks being the person who had transferred the equitable title to Henderson, of course, had notice of the existence of that title when the grant was issued to him, and when, as a consequence, the legal title passed into him.
These things being so, it followed, that, when the legal title passed into him, it passed into him, as a naked legal title for the use of Henderson.
Now, on such a legal title as that, the statute of uses operates ; and the operation of that statute, is, to convey the legal title to the holder of the use.
[3.] Therefore, when the legal title thus passed into Nicks, it immediately, under the operation of the statute of uses, passed out of him again, and into Henderson. Pitts vs. Bullard, 3 Ga. R.
But if, when the legal title passed into Nicks, it thus passed out of him into Henderson, then, it may be said with strict propriety, that when the legal title passed into Nicks, it“ inured to the benefit of Henderson.” And that it did this, is what the Court told the jury, in the charge now under consideration.
[392]*392That charge, therefore, we think was right.
It is to be remembered, however, that this “ inuring to the benefit of Henderson,” is a thing which we attribute to the operation of the statute of uses. Whether it is not a thing that might not also be attributed, to some doctrine of estoppel, it is needless to inquire. I may say, that I strongly incline to think, it is not.
The remaining and last ground of the motion for a new trial was, that the verdict was against the law and evidence, as to title.
We think that the verdict was against neither.
That it was not against “the law,” “ as to title,” on the supposition that Eli Nicks and Elias Nicks were the same person, and that that person was the drawer, is a point that may be left to what has already been said.
And this supposition is justified by the evidence. The jury thought so; and, in our opinion, there was enough in the evidence, to make them think so. At least we may say this, that there was enough in the evidence to show that such a thought in the jury, was not one that was, “decidedly and strongly against the weight of evidence.” Acts of 1853-54, 47.
If this supposition was justified by the evidence, then the verdict was not contrary to the evidence. This must be manifest.
Upon the whole, we think the Court erred in granting the motion fora new trial.
Judgment reversed.