The morning news. [volume] (Savannah, Ga.) 1887-1900, 1895-03-15
NOT RECORDED PROPERLY.
A Defendant Acquitted on Account
of n Technical Error in an Oyster

]
of n Technical Error in an Oyster
Lease
Charles Carpenter. who was indicted in
the city court for a misdemeanOr. being
charged with stealing twelve bushels OF
oysters from the beds belonging TO the
Savannah Bank and Trust Company. and
the National Bank Of Savannah. was ac-
quilted after a trial by jury yesterday, on
direction from Judge MacDonen
1t was shown that the water tract from
which the oysters were taken was leased
to W. c Pead by the county commission
ers, that Pead afterward leased it to
the Oemler Oyster Company, and when
that company failed the lease was made
over to the banks. When the lease was
offered in evidence the defendants coun-
sci objected on several grounds. II was
held that the lease contained interim
cations. which were not noted at the bot
tom before signing. These interlinea-
TONS however, were proven by the tes-
timony of Capt John r. Dillon and Mr..
J. R. Saussy, county attorney, to have
been properly made.
Another point made was that the act
required the lease to be drawn in a
manner and form approved by the attor.
ney general The form of lease approved
by Attorney General Clifford Anderson
was shown in evidence, and 1t was
claimed that this form contemplated that
the lease should be executed in duplicate
and in the presence of witnesses. The or
iginal lease offered in evidence did not
appear to have been executed in the pres
ence OF witnesses, and while a duplicate
FORM OF the lease kept in a bound book
by the commissioners was filled out in the
Douy, II was never executed by being sign
ed Dy the commissioners or by anv one
authorized By them, or in the nreserce
Of any one.
AAother point made was that the lease
was not signed by the commissioners. but
Dy robert D. Walker as chairman. The
Ilsht OF the chairman to sign for the
DOaTu purported to be by virtue of a
Ie19oiution OF the commissioners dated
Jan. ~, 1882, but in point of fact when the
minutes of the commissioners of that
uate We're introduced in evidence no au-
monty from the board to its chairman
10 sign its corporate name appeared on
the minutes.
The principal point however, on which
the defendant relied was that the law
requires the lease to be recorded in the
same manner as deeds of realty in the
clerks office of the superior court; that
the law in order to entitle a deed to be
recorded required that its execution
should be attested by a notary public.
Judge or clerk of the superior court.
mat II recorded without having been so
attested 1t was improperly recorded, and
rnf
10 third persons or the public at large
and that the particular lease was not
so attested and was improperly admitted
to record
The court ruled that the lease under the
express provisions Of the act was re-
quired to be recorded as a deed of realtv
In the Office of the clerk of the superior
court; that the lease conveyed only a
chattel interest but that under the law
in order to be properly admitted to record
and to constitute notice to third persons,
1t was necessary that it be attested bv a
notary public or some other officer author
lied to attest deeds; that this
lease was not so attested, that il was i'm
properly admitted to record that it con-
sututed no notice 10 third persons. and
that such notice by proper recording
was essential to the title of the lessee
as against the public at large. The court
held, however, that the deed was good
and valid as against the county com
missioners, and that they would prob
ably be estopped from granting leases of
the same oyster lands to any other per-
sons. Judge MacDonell therefore direct
ed that the defendant was entitled to a
verdict in his favor which was according
ly found.
Mr. w. W. Gordon, Jr., who represent
ed the Oemler oyster Company, stated
that he had had nothing to do with the
preparation of the lease. He asked the
court now that the defendant had been
put on actual notice of the existence of
the lease, to warn him that If he trespass-
ed on the oyster beds again he would be
amenable to the law.
Mr. Gignilliat of Messrs. Gignilliat &
Stubs, representing the defendant stated
that he wanted it understood that he had
advised his clients and others. that the
public had a perfect right to go on these
beds and take oysters, Notwithstanding
the existence of the leases. He said that
the main point in the case had not vet
been reached, and that he believed he was
able to show when the point was
reached in the course of the litiga-
ton, that the law was unconstitutional,
and that the lease was null and void.
Judge MacDonell said in view of that
statement it would be improper to make
any further ruling in advance of such
question.