Pitts vs. Bullard.

vs. Stump, 2 Harris & John. 301, are all cases in support of the same doctrine-i. e. that lands are liable on an execution at law, against a cestui que trust, who has the whole beneficial interest and the trustee only a mere naked legal title. And numerous other American cases might be adduced in confirmation of this position.

In Hull vs. Greenhill, 4 Barn. & Ald. 684, Abbott, C. J. says: "A trust, to be within the Statute of Charles, must be a simple trust for the benefit of the debtor. The object of the statute appearing to us to be, merely to remove the technical objection arising from the interest in land being legally vested in another person, where it is so vested for the benefit of the debtor."-See also Harris vs. Booker, 4 Bing. 96.

Such a trust, says Blackstone, will descend, may be aliened, is liable to debts, to executions on judgments, statutes and recognisances, by express provision of the Statute of Frauds, 29 Ch. II., to forfeiture, to leases and other incumbrances, nay even to the curtesy of the husband, as if it was an estate at law.-2 Com. 337.

In Forth vs. Duke of Norfolk and others, 4 Madd. 266, Sir John Leach says—“ A judgment creditor has at law, by the Statute of Frauds, execution against the equitable freehold estate of the debtor in the hands of his trustee, provided the debtor has the whole beneficial interest."

The conclusion then to which we come is, that Sims, having bought the land and paid for it, and there remaining nothing more for him to do, it not being a mixed or divided trust, and there being no intervening estate or limitation over, that it comes within the Statute, and that the land was vendible on execution.

It has been insisted, and with much force, that the trusts referred to in the Statute, are such only as are raised by a conveyance, where all could be certain as to their nature and existence. But by reference to the 8th section of the Statute, I think that it may be plainly inferred, that the generic term trust used in the 10th, is not restricted to such only as are expressly created by deed or devise, but that it extends likewise to constructive trusts, or such as arise by implication or operation of law.

Shall it be said, that constructive trusts depend upon controverted facts, and, according to the prevalence of these facts on one side or the other, the decree in equity is moulded? I answer, if A buy land and pay for it with the money of B, and take the conveyance to himself, is not this trust liable to the same objection? Does it not depend upon the pleadings and evidence? And may

Pitts vs. Bullard.

it or may it not, according to circumstances, be established by a court of equity? Most assuredly. And yet no one, I believe, has ever doubted that this case would fall within the statute.

But it is further urged, that a bond for titles creates no seisin in the obligee. That a covenant to convey is one thing, and a conveyance quite another. But if seisin depends upon an actual conveyance, how, I ask, is the seisin in B, in the case of a constructive trust which I just put? I answer, moreover, that the trust being extendible under the statute of Charles, there was seisin in Sims, from the time he took the bond and paid down the purchase money—and no other conveyance was necessary. From thenceforth Sims' rights were legal rights, and coming fully up to the maxim of the common law, pointing out the object of executions and limiting the subjects that may be demanded by them. Ea quæ in curia nostra rite acta sunt, debitæ executione demandari debent.

Even under the statute of 27 Henry VIII, commonly called the Statute of Uses, we should be strongly inclined to the opinion, that the interest of Sims in this lot of land was a legal estate, and liable to all those rules to which common law estates were liable.

Perhaps it is unnecessary to express any opinion as to the [2.] validity of the deed from McWhorter to Bullard, it being admitted that Pitts was in adverse possession at the time of its execution. The statute of 32 Henry VIII, against bracery and buying of titles, and which is only in affirmance of the common law, is embraced in the digests of English statutes of force in the State of Georgia. It is not necessary that a party be in actual possession in order to make a valid deed to land; it is sufficient if there be no adverse possession held by another; the object of the statute being to prevent the sale of pretended titles, (or in other words, of lawsuits.)-4 Bac. Abr. 495., quoted in a note to Schley's Digest 194. It would seem also, that if there be two persons claiming the same land, neither of whom is in the actual possession, and the premises lying untenanted, that a deed made by either of them would not come under the doctrine of maintenance, because there is no adverse possession. Ibid.

I apprehend that it will be found that the doctrine has never been altered that a conveyance to a third person of lands held adversely at the time, is void as an act of maintenance.-Coke Lit. 214 a. Plowd. 88. Before a person could convey lands in the adverse possession of another, he was under the necessity of red

Hall vs. the State.

ing his right into possession, by suit. If this be the law still, then the deed to Bullard transferred no right to him, as Pitts was, at the time, in possession under sheriff's titles, claiming the land as his own. But in this case, the plaintiff in ejectment has devised, and very properly, a double fiction, and laid a demise from both McWhorter and Bullard. And this course is sanctioned and sustained in Williams vs. Jackson, 5 Johns. 489, where it was decided that if a person out of possession conveys land held adversely by another, such conveyance is void, but the title remains in the grantor, upon the maxim, I suppose, dormit aliquando jus, moritur nunquam. And where, in an action of ejectment several demises were laid, one from the grantor and another from the grantee of such a deed, it was ruled that the plaintiff might recover, though he could not on the demise of the grantee only.

But I intend only to state the principle, and shall not undertake to discuss it.

The judgment given at the Circuit Court must, for the foregoing reasons, be reversed.

No. 3.-WALTER B. HALL, plaintiff in error, vs. THe State of GEORGIA, defendant in error.

[1.] When an indictment accuses the defendant of the offence of a misdemeanor and then specifies that such misdemeanor consists in keeping an open tippling house on the Sabbath day, contrary to the statute, the accusation of the offence in the indictment is sufficient under the provisions of the Penal Code.

[2.] When the statute declares, "Any person who shall be guilty of keeping open tippling houses on the Sabbath day," the keeping open a tippling house on the Sabbath day, is a violation of the statute.

[3.] When the indictment alleges the offence to have been committed in the year 1846, the Court will presume it to be in the Year of Our Lord 1846.

[4.] Under the 6th section of the 10th division of the Penal Code, the keeping open a tippling house on the Sabbath day is indictable and punishable, without proof that the defendant sold liquor, or that the same was a nuisance, or hurtful to the neighbourhood, or to the religion or morals thereof; the offence consists in keeping open the doors of the tippling shop on the Sabbath day.

[5.] When the verdict of the jury is regularly returned on the indictment, but by the neglect of the clerk it is not entered on the minutes of the Court at the term at which it was rendered, this affords no ground for arresting the judgment; the Court may at the next succeeding term order the verdict of the jury to be entered "nc pro tunc.

Hall vs. the State.

Indictment for misdemeanor. Tried before Judge WARREN in Macon Superior Court. Verdict of Guilty, and motion in arrest of judgment argued and overruled. April Term, 1847.

The plaintiff in error was tried before Judge Warren, in Macon Superior Court, October Term, 1846, upon a bill of indictment charging him with the offence of a misdemeanor. The indictment after the general accusation aforesaid, proceeded to specify the said offence as follows-" For that the said Hall, on the twentysecond day of March, in the year eighteen hundred and forty-six, did, in the county of Macon, and State of Georgia, unlawfully and with force and arms, keep, in the town of Lanier, an open tippling house, on the Sabbath day," and concluding with the usual form.

Upon the trial the plaintiff in error was found guilty; but at the same term, and before judgment, a motion was made by his counsel in arrest of the same, upon the following grounds:

First. Because the bill of indictment was defective and void for uncertainty, inasmuch as the plaintiffin error was thereby charged with having committed the offence of a misdemeanor, when the statute under which he was indicted did not denominate the said offence a misdemeanor, or declare that the person who kept open a tippling house on the Sabbath day or night, should be guilty of a misdemeanor.

Second. Because it was no where charged in said indictment that the day on which said tippling house was thereby alleged to have been kept open by the plaintiff in error, was the Sabbath day.

Third. Because the indictment only charged the keeping open one tippling house, and not a plurality of tippling houses, which last only was an offence under the statute.

Fourth. Because the indictment did not allege with certainty the year in which the offence was committed, but only alleged it was committed "in the year eighteen hundred and forty six," without designating the era or period from which said date began.

There being a want of time during the term to argue this motion, it was, at the suggestion of the Court below, agreed in writing between the Solicitor General and the counsel of plaintiff in error, that the judgment in said case should be suspended until the next term thereafter, when the motion should be argued and determined.

At the April Term, 1847, Judge Warren presiding, the motion in arrest came on to be argued, when the counsel for the plaintiff i

Young vs. McKenzie, Harrison and others.

162, 168, et seq.; 7 id. 315; Rice R. 383; 2 Porter R. 296; 2 Stewart R. 199; 6 Pick. 376; 7 id. 344; 11 Pet. R. 42; Charles River Bridge vs. Warren Bridge, 1 Pick. 417; 3 Paige R. 45; 4 id. 510; Mayor and Council of Columbus vs. Rodgers, et al., Supreme Court of Alabama, June Term, 1846, (not published); 1 Story Eq. Juris. sec. 27, 28, 32, 33, 59, 64, 65, 67, 71, 73, 74, 78, 109, 120; id. 94, et seq. id. sec. 388; 2Story Eq. Juris. sec. 885, 889; Eden on Injunctions, 112, 113; 18 Ves. Jr. 514; 19 Ves. Jr. 143; 2 Wils. R. 313; 1 Kelly R. 533.

JONES, BENNING and JONES, for the defendants in error, made the following points and cited the following authorities :

1st. The injunction ought to have been refused, because there was no equity in the bill. There was no equity in the bill, because the act incorporating the Irwinton Bridge Company, (Acts of 1837, p. 139,) on which the bill was founded, as unconstitutional and void for that

First. It would have impaired the obligation of the contract (grant) between the State and the defendants, or their feoffor. Acts of 1837, p. 139; Fletcher & Peck, 6 Cranch, 87, 90, 91; 1 Kent Com. 414; Dart. College, vs. Woodward, 4 Wheat.; 1 Kent Com. 419, 420; Ogden vs. Saunders, 12 Wheat. 213; 1 Howard, 311; 2 id. 608; 3 id. 711.

And this, notwithstanding the provision in the constitution, "Nor shall private property be taken for public use without just compensation:" because,

Second. The "taking," under that act, would have been, not "for public" but for private "use," for the Bridge Company was a private corporation.-11 Peters, 543, 544; Dartmouth College vs. Woodward, supra; and what was taken, was taken for its use.— The Act supra.

Third. And the "compensation" therein provided would not have been "just." Vanhorne's Lessee vs. Dorrance; 2 Dallas, 304.

Fourth. Besides, this provision does not not apply to State action.-7 Peters, 243.

2d. And because, if there was equity in the bill, it had been sworn off in the answer, by its denial, amongst other things, of the performance by the Bridge Company of certain conditions to be performed, before any right could vest in them under the act itself, (1 Kelly 526, Carr vs. Georgia Rail-road,) namely: