McRory v. Sykes

20 Ga. 571

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] In Walker vs. Wells, (17 Ga. Rep. 547,) this Court intimated pretty strongly that a mistake in a grant could not be corrected in this State either by scire facias or bill. We have heard nothing to change that opinion.

Whether it could be done by a proceeding in the name of the Governor upon the relation of the party, we will not undertake to say. Unforeseen difficulties might occur in the pursuit of this remedy. Legislation is needed either in the shape of the North Carolina Statute (cited in 17th Gteorgia) or by authorizing a suit or proceeding to be prosecuted in the name of the State at the instance of the party aggrieved.

It is suggested that the North Carolina remedy by scire facias, will not reach the case, inasmuch as it extends only to defects in the body of the grant or apparent upon its face. It was the remedy prescribed to vacate grants fraudulently drawn. And there the fraud was wholly outside of the grant.

Rut in my judgment, whichsoever way the party may turn in this case, he is environed with one difficulty from which he will find it difficult to extricate himself. If Sykes be a Iona fide purchaser, can the Legislature, or the Courts, or any other tribunal rectify this grant so as to make it available against him ? If he had not the means of knowing the mistake, can he be made to suffer by its correction ?