Payne v. McKinney

30 Ga. 83

• Court: Supreme Court of Georgia
• Decided: March 15, 1860
• Status: Published

Opinion

By the Court

Lumpkin, J.,

delivering the opinion.

Was the power of attorney made.by McKinney to Whit-low, and witnessed, only by a Justice of the Peace, admissible in evidence upon the fact merely of its having been recorded without other or further proof of its execution ?

Conceding that it operated as a conveyance, and that one witness was sufficient to constitute it a good deed, still there is no law which entitles it to registration upon the attestation of a single witness, although he be a magistrate. The Act of 1839, applies only to deeds made prior to that time.

The main question in this case is this : Can the vendor of lands avail himself of the possession of his vendee, especially when he repudiates the title of his vendor to perfect a .statutory title by adverse possession ?

It is true, the books treat the vendor and vendee under a bond for titles, as occupying the quasi relation of landlord and tenant. But not, we apprehend, for the purposes contended for in this case. The tenant stipulates to hold the premises for his landlord proper, and to return it at the expiration of the lease: not so the vendee — and while he holds the land in subordination to the title of the vendor, still he holds it as an absolute purchaser, and never contemplates a surrender, and each party is remitted to his respective rights resulting from the executory contract.