dissenting.
A difference of opinion imposes upon me, the unpleasant necessity of maintaining, single handed, my opinion against that of my esteemed colleagues in this case. However unequal the conflict, I shall not shrink from it; duty to myself, as well as the country, impels me to maintain my opinion firmly.
The only question in this case is, whether a conveyance of land, by one against whom the land conveyed was held adversely, by claim of title, is void ?
When this Court was organized in 1845, we found the affirmative of the foregoing proposition to be settled law throughout the State, and had been from time whereof the memory of the oldest attorneys ran not to the contrary. It seemed to be a doctrine at all times familiar to our people and constantly acted upon by them. The title in dispute, *116like thousands of others in the State, was based upon it. Hence we inferred that being a well established principle of the common law, and peculiarly adapted to a new country, it was actually in force in this State before the revolution, as “suitable to the circumstances” of the colonists, especially had we a right so to conclude, as the 32d Henry the VIII, adopted in England for the purpose of more effectually enforcing this principle, had been embraced in Governor Schley’s compilation, as one of the British statutes which was binding in Georgia.
Without permitting ourselves, therefore, to inquire whether this was a good or a bad law, we recognized and applied it as law, leaving it to the Legislature to change or repeal it, should it be deemed expedient to interfere.
It is suggested that the statute of Henry VIII has been recently repealed, even in England, by the 8 and 9 Victoria, and this is true. Having accomplished there the purpose for which it was intended, and the reasons in which it originated having ceased to exist. I remark, however, that it was abrogated by the Parliament, and not by the Courts.
The ancient common law mode of conveying land was by livery of seizin; and consequently, necessarily excluded the idea of a sale of lands by one not in possession. And Lord Coke, commenting upon the text of Littleton, that “no entry could be reserved to a stranger upon a feoffment,” says, u here Littleton reciteth one of the reasons .of the common law, and the reason hereof is, for avoiding maintenance, &c., and therefore, nothing in action, entry, and re-entry could be granted over.” 2 Thomas' Coke, 99, 214, a.
And this, no doubt, is the true foundation of the rule, namely: “ nothing in action” merely, could be conveyed; or in other words, the vendor, not having the possession himself, nor the power to put the purchaser in possession, could not sell a lawsuit.
We have said that delivery of possession was the essential part of a feudal transfer. But the statute of cases was made *117the medium of transfer, without delivery of possession. The statute of Enrolments was passed to conteract the effects of this change, as much as possible, by giving some notice and notoriety to the transaction. And soon after came the 32 of Henry VIII, called the K Bill of Bracery, or buying of titles,” or the “Pretended Title Act,” which was expressly designed to preserve the transfer of possession as an ingredient of title.
“This statute,” said Chief Justice Montague, in Partridge vs. Strange, (1 Plowden, 88,) “has not altered the common law, for the common law, before the statute, was, that he who was out of possession ought not to bargain, grant, or let his title; and that if he had done so, itwould be void. Then, the statute was made in affirmation of the common law, and not in alteration of it. And all that the statute has done is, it has added a greater penalty to that which was void by the common law.”
“It is a mistake,” said Mr. Justice Duer, in delivering the opinion of the Court, in Hoyt vs. Thompson, (3 Sandford’s Pep. 430,) “to suppose that the law of champerty is derived from the provisions of the statute of Henry VIII, which we have re-enacted, and which forbids the conveyance or sale of lands by a party out of possession. The statutory prohibition is only a partial affirmance of a general rule of the common law.”
We assume it to be true, upon undoubted authority, that the common law forbids every transfer of a disputed title, whether relating to real or personal estate of a person out of possession, and where the property is held at the time, in good faith, by another, under an adverse title, and the reasons of public policy, upon which the interdiction is founded, apply with equal force to eveiy description. Coke Litt. 314; Bacon’s Abr. Grant, D; 1 Hawkins’ Pls. Cro. Book i, ch. 84, s. 1; 2 Stor. Eq. Juris, 1048; 4 Black. Com. 135; Burke vs. Green, 2 Ball & Beatty, 517; Cholmondely vs. Clinton, 4 Bligh’s N. S. 4; Baker vs. Wheling, 3 Sumner, 475; Powell vs. Kumler, 2 Atkins, 224; Shackam vs. Bun *118der, 1 Eden, 308; Wallace vs. Duke of Portland, 3 Ves. Jr. 493; Stevens vs. Bagnel, 15 Ves. Jr. 139; and the more recent case of Roper vs. Edwards, Young & Call, Ex. Rep. 431.
In this last case, Lord Abinger, in a most elaborate opinion, establishes conclusively the point, that the right of an assignee or purchaser will never be admitted or enforced, unless it appears that the assignor or vendor had, at the time of the transfer, a substantial possession or an immediate capability of personal enjoyment of the property conveyed; and that in other cases, where there was adverse possession at the time of the transfer or sale, but the naked right of action only, such transfer is not upheld by the law, and that a purchaser under such circumstances has not a locus standi in publico. It is the conveyance of nothing but a disputed title — a lawsuit which is now and always has been illegal and void. The thing conveyed being only available by a hostile action. I will only add that this whole doctrine is fully and satisfactorily discussed in the notes to Rowe & Dawson. 2 White & Tudor’s Eq. Cas. 201 — 241.
Riot out then if you please the “ Bill of Bracer y,” and the doctrine for which we contend remains untouched; sustained as it is by all the books, text-writers, and reporters, from Brooke to Blackstone.
Without then overruling the law thus firmly fixed and uniformly maintained, we cannot give effect to a deed made while there is adverse possession. Such a decision cannot be made without an entire subversion of a principle coeval, as we have seen, with the law itself, and without an utter abandonment of the rules by which Courts, in judging of the validity of such transactions, have hitherto been governed. We should, contrary to the policy of the law, and the settled maxims and practice of the Courts, be giving sanction to the sale of a lawsuit, and the purchase of a disputed title; and consequently will have exceeded the authority conferred on us by law.
In some of the States, the statute of 32 Henry VIII has *119been re-enacted literally; in some, has been modified; in’ others, it is regarded and acted upon as a part of the common law; while, in a few, it has no existence whatever. Four of the old States, to-wit: Pennsylvania, New Jersey, New Hampshire and Delaware, and, I believe, three of the hew, namely: Illinois, Missouri and Louisiana, making seven in all, stand against the remaining twenty-four,including Georgia, who, by adopting the common'law, has, as we have' shown, adopted, as a part of it, the doctrine that a conveyance by a party out of possession, with an adverse possession against the grantor, is void as against the party in possession. In other words, as against the latter, the grantor has passed no right whatever to the grantee. This State is committed to this doctrine, not only by her adoption of the common law, in 1784, of which it was and ever had been a part, but'likewise by the reception, approval and distribution of Schley’s Digest, containg the 33 Henry VIII as ohe of the British statutes of force in this State, and which was passed’ ** in affirmation of the common law, and not in alteration of it,” and which has been uniformly held to be “ suitable to the circumstances of our people.”
Should it be asked, as it has been, why not adopt the whole of this Act, to-wit, its penalty ? We reply first, in the language of Senator Seward, in the case of Livingston against the Peru Iron Company. (9. Wendell’s Reports 537.) "I am free to admit that the cases are numerous which show that the rigid features of the statute have been relaxed as to the conviction for the penalty imposed by the 8th section; and I will not undertake to defend, upon principle and sound reason, the anomaly, that a deed may be void, because made in violation of the statute, and yet the parties to the deed be held altogether acquitted of the crime which is constituted by a violation of the statute. Yet such is the principle which has, if I mistake not, obtained and has prevailed so long, that it would be manifestly unsafe, for the sake of harmonizing the decisions, to extend the principle as is contended for *120in this case. The scienter is a necessary ingredient in the crime of a violation of this statute; and yet the question of scienter never was raised in an action between a party claiming under the deed, and the person holding adversely. In the case of Wickham vs. Conklin, (S. Johns. R. 226,) which was a qui tarn action under the statute, the Court distinctly recognize the principle that adverse possession will operate to defeat a deed, although the making or taking the deed does not subject the party to the penalty of the statute. The same principle seems to be conceded in the case of Lane against Shears, (1. Wendell 433,) while it is freely conceded that the relationship of the parties in a deed may excuse them from the penalties of the Act; it is also most obvious that without exception the law has been received and settled in numerous cases, so far as I can find, without the intervention of a single conflicting decision, that adverse possession renders inoperative every grant of the premises except a release, so the law is laid down in Kent’s Com. vol. 4, p. 438 and I agree with the illustrious author, that the Legislature, in incorporating the same provision in the revised statutes, have only enacted what was universally understood to be the law before the revision. 1. R. S. 739, S. 147. To reverse principles of law, thus solemnly and so long settled, would be most unwise; and upon a full view of that ground, It am clearly of the opinion, that, were it necessary to adopt one or other alternative, the Court ought, rather, to restore the strictness of the statute, as to the infliction of the penalty for champerty and maintenance, than, for the purpose of harmonizing the consequences of the Act, to abolish the doctrine that adverse possession renders void any deed executed by a party claiming title to the premises.”
In addition to the masterly opinion of Senator Seward, from Avhich the foregoing extract is made, and which commends itself to the grave consideration of all reflecting minds, and should especially be pondered well by those who would substitute their individual opinions in the place of the *121well digested judgment of the Judicial world, I would remark, in the second place, that nothing is more common than to adopt a part of an English statute, as adapted to the condition of the country, and to reject a part as unsuitable. This is true as regards the statute of 43d Elizabeth, commonly called the statute of charitable uses. But in this case, as the one under consideration, it will generally be found that the part adopted has its foundation deeply laid in the commonly law, and the Act is intended only to give it additional force, or to prescribe more definitely the mode and manner of applying and enforcing it. One thing is certain, viz: that while no case is reported or recollected, where the penalty of the statute has been inflicted, the unbroken tenor of adjudications in Georgia has been to hold the deed itself void, as against the party in adverse possession; and that the understanding of the Bar and of the people has been in accordance with this usage.
If it required then an Act of the British Parliament to enable a right of entry, whether vested or contingent, to be disposed of by deed, I protest, under all the circumstances, against the exercise of this power by my worthy associates, while at the same time, I cheerfully concede that none are more competent to make or repeal laws. Even they, however, have no authority to change the law from what it is and always has been. Especially do I object to judicial legislation in this case, as the Legislature itself, at its last sessidn, it is understood, solemnly refused to alter the doctrine of the common law. Nor do I wonder at it, seeing that the general policy of it remains in a great degree unquestioned and upon the preservation of which, the security of estates so greatly depends. Our professional brethren from Cherokee and South-Western Georgia insist most earnestly, that we shall, by setting aside the law, as it has been heretofore interpreted, expose their sections to harassment which would inevitably ensue from the sale of pretended titles.
We cannot too often insist that the Courts are to expound *122the laws, not to make them. They have no faeilitiés for such an enquiry. And there is this wide difference between Bench law and that enacted by the General Assembly. Thn former always operates retrospectively, and overturns all that has been done, and by unsettling everything, re-opens the flood-gates of litigation. The other-prescribes a rule of conduct for the future, and protects at the same time past' transactions; and is thus much more benign in its effects. Is it right that contracts made, as in the present case, upon the faith of adjudications, commenced at so early a period* acquiesced in so long, and so often repeated, should be vacated and set'-aside at this late period?
The will of the’Legislature is binding upon the judiciary* and this will'may be expressed, by a positive enactment or a' refusal to act, where they have the power, which is equally significant of the legislative mind. The will of the community, made known in either of these ways, should be paramount. In’this instance, we'have both. The Legislature* as we have before said, not only adopted this doctrine as a part of the common law, and re-afiirmed it, by the reception' and distribution of Judge Schley’s Digest, but what is equally expressive, has acquiesced in it, as declared by the Courts foi-nearly three-quarters of a century. The Legislature can precisely adapt the remedy to the evil; Courts cannot. Another weighty consideration why the repeal of laws should be ¡referred to the Legislature, rather than to the Courts.
Some general expressions to be found in the old registry Act of 1785, are supposed to have repealed by implication the rule of the common law, for which we are contending; as well as the provisions of the Act of 32 Henry VIII. The preamble to that Act, recites that “many deeds of bargain and' sale and other deeds of feoffment or conveyance have been made, which have not been enrolled, or livery of seisin had, or which may be deficient in point of form, when it was the legal intent of the party to sell and lawfully convey the same.”
*123It is therefore enacted, “That no deed of feoffment, bargain and sale, and deed of gift or other conveyance of lands or tenements whatsoever, heretofore made, shall be impeached or set aside in any Courts of law or equity for want of form or livery of seisin, or enrolment, or for any other defect in the form or in the manner of the execution of any such deed, or in any of the mesne conveyances derived therefrom, so that the right were or would have been in the person or persons conveying, if such defects had not happened in such conveyances or in the manner of the execution of the same,” &c.
The next section prescribes the mode in which deeds are to be made in future; and declares that “all deeds of conveyances, by way of bargain and sale bona fide of lands and tenements, and executed under hand and seal, &c., shall be good and valid, &c., according to the true intent, construction and meaning thereof ” Cobb 164, 165.
I simply remark, that this Act has been upon the statute book for upwards of seventy years, and has never been supposed to have any application to the question under discussion, as it most obviously has not. It assumes that the person selling had the right to convey and intended to do so. Whereas, in the case of alienation of land held adversely, the vendor has no right to sell, and the bona fide of the transaction has nothing to do with it, so far as the validity of the deed is concerned. The Act of 1785, was designed to cure and legitimate certain defective conveyances theretofore executed and to dispense with certain requisites in deeds, or livery of seisin, &c., in conveyances thereafter to be made. But the grantor himself by no act of his could confirm and make good a conveyance made by him during an adverse possession ; neither could the Legislature do it for him. Nor did they inconsiderately attempt it by the Act of 1785, or any other statute. The Act of 1785, was a wise measure framed for a widely different purpose.
It is always dangerous to invoke general terms used in *124statutes, and especially Acts which are ancient, and put a meaning upon them, confessedly not within the mind of the law-maker.
And this Court acted upon this principle in the Temperance case in 15. Ga. Reports 408.
For these, and other reasons, I am constrained to dissent from the judgment of a majority of the Court.