8 S.E.2d 62 | Ga. | 1940
Lead Opinion
1. The action is founded on alleged breach of covenant to assume and pay an outstanding debt secured by a mortgage on land in the State of Florida. The case is for decision on demurrer to the petition. The petition does not set forth the laws of Florida applicable to the case. Held:
(a) This court can not take judicial cognizance of the laws of the State of Florida.
(b) If the State of Florida had been one of the original thirteen States of the Union, or had been carved out of the territory of one of the original States, it would be presumed that the common law of England, in so far as pertinent, was of force in that State, and the case would be decided with reference to the common law of England. Eubanks v. Banks,
(c) However, as the State of Florida was not one of the original thirteen States and not carved out of one of them, but was a part of the Spanish possessions on this continent before becoming a part of the Union, it will not be presumed that the common law of England prevailed in that *2
State. If it prevails there, it must be by virtue of some statutory provision of which this court can not take judicial notice.
(d) As no Florida law was alleged in the petition, the case must be decided on the law of this State. Flato v. Mulhall,
2. It is declared in the Code, § 29-102: "When a grantee accepts a deed and enters thereunder, he will be bound by the covenants contained therein, although the deed has not been signed by him."
(a) Warde, having title to land, encumbered it by mortgage to Mack to secure his notes to Mack, aggregating $3000. Afterwards in a different transaction Warde executed a warranty deed conveying the land to Pomerance. The deed contained a recital that as part of the consideration Pomerance agreed to assume and pay the mortgage debt to Mack. Pomerance accepted the deed, but did not enter actual possession of the land thereunder. Held, that in these circumstances the recital contained in the deed as to assumption and payment of the debt of Warde to Mack does not, in virtue of the Code section just quoted, bind Pomerance as a covenant to pay the debt of Warde to Mack.
(b) This does not mean that if Pomerance had also signed the deed, or had otherwise in writing or parol expressly promised Warde as part of the consideration of the deed to pay Warde's debt to Mack, or had entered into actual possession of the land, he would not be bound by his promise after the promisee on the basis thereof had acted to his injury by executing the deed.
3. The petition did not allege a cause of action for breach of covenant under the deed.
4. Contemporaneously with the execution of the deed mentioned above, Pomerance executed a mortgage on the same land back to Warde, to secure his notes to Warde aggregating $1500. The mortgage expressly refers to an outstanding "first mortgage in the sum of three thousand ($3000) dollars," on the land, and contains a promise "to pay all . . liabilities obligations, and incumbrances of every nature on said described property." Held:
(a) The promise thus expressed in the mortgage is a sufficient promise by Pomerance over his own signature to obligate him to pay the debt owed by Warde to Mack which was secured by mortgage and was an outstanding encumbrance on the land.
(b) The binding effect of this obligation is not dependent upon application of § 29-102, quoted above.
5. There was a series of transfers of the notes and security held by Mack. Alropa, the last transferee, was holder of the notes and security, and occupied the position of Mack had he retained the notes and security. All of the parties to the deeds, notes, and mortgages and instruments of transfer were residents of the State of Florida, except Pomerance, who was a resident of Richmond County, Georgia. In these circumstances Alropa could maintain a suit in equity for a personal judgment against Pomerance in the county of his residence, upon his assumption of Warde's debt to Mack, as expressly promised by the language of his *3
mortgage. Bell v. McGrady,
6. In such an action, the promise of Pomerance being contained in the mortgage which was executed by Pomerance under seal, the applicable statute of limitations would be Code § 3-703, limiting the time to twenty years from the time the right of action accrued. Kytle v. Kytle,
7. Relatively to the demand based on the promise expressed in the mortgage from Pomerance to Warde, the petition alleged a cause of action, and was not subject to any of the grounds of demurrer. It was erroneous to dismiss the action in its entirety.
2. There is no question about Alropa being a successor in title to the notes and mortgage executed by Warde to Mack, or that the notes and security were outstanding at the time of the deed from Warde to Pomerance. That deed contained the clause: "This deed is made subject to a first mortgage in the sum of three thousand ($3000) dollars, from Paul C. Warde and wife, to Chas. D. Mack, which as part of the consideration for this conveyance grantee assumes and agrees to pay." A question arises, did the foregoing clause in the deed duly signed by the grantor, but not by the grantee, amount to assumption or agreement to pay the debt of Warde to Mack? Mack was not a party to that transaction, and consequently Pomerance did not purport to agree with him to assume the debt of Warde. Whether Pomerance promised Warde, as a part of the consideration of the deed to him, to pay the debt of Warde to Mack depends on the provisions of the deed, and application of the law. It is declared in the Code, § 29-102: "When a grantee accepts a deed and enters thereunder, he will be bound by the covenants contained therein, although the deed has not been signed by him." This language first appeared in the Code of 1895, § 3600. That Code was adopted by the legislature, and in virtue thereof its provisions became binding as a statute.Central of Georgia Railway Co. v. State,
It will be perceived that while the facts showed acceptance of the deed by the grantee, and entry of possession of the land by the grantee by constructing and maintaining the railroad on the right of way so granted, the language of the decision by this court went so far as to say "the grantee, by accepting such deed, entered into a covenant to comply with its terms," omitting express reference to the additional matter of entry ofpossession thereunder. When the legislature went to deal with the matter as in the Code, § 29-102, it could have stopped with the language "when a grantee accepts a deed," he will be bound, etc., as the decision of this court declared in effect; but the legislature did not stop there. It added, "and enters thereunder," etc., thus declaring the whole principle that the facts of the case involved. The purport of the statute was to put in the mouth of the grantee, by implication, a promise not expressed nor signed by him, but with the qualification that he "enters thereunder." These qualifying words can not be written out of the statute, but must be given effect. If they could be written *7
ten out of the statute, the preceding words which they qualify "when a grantee accepts a deed," could just as well be written out. If either were excluded, it would obviously defeat the legislative design. The qualifying words refer to entry of actual possession of the land, as was the fact in the Reeves case that called forth the enactment. On proper construction of the Code, § 29-102, applied to the instant case, there was no binding covenant in the deed from Warde to Pomerance that the grantee should pay the debt of Warde to Mack. This accords with the rulings in Union City Realty Trust Co. v. Wright,
Judgment reversed. All the Justices concur, except Bell andGrice, JJ., who concur in the result, but dissent from the rulingin division 2 of the decision.
Concurrence Opinion
I concur in the judgment of reversal, but not in *8
all that is said in the opinion; that is to say, I dissent from the rulings contained in the second division of the decision. It is declared in the Code, § 29-102: "When a grantee accepts a deed and enters thereunder, he will be bound by the covenants contained therein, although the deed has not been signed by him." As stated in the majority opinion, this section appears to have been adopted in view of the decision in Georgia SouthernRailroad Co. v. Reeves,
In reference to the various Codes adopted by the General Assembly as a general statute, it has been uniformly considered that the purpose of the Code was not to make changes in the law, but to arrange and declare the existing law. For instance, inLamar v. McLaren,
It should also be remembered in this connection that statutes in derogation of the common law are to be strictly construed.Yancey v. Lamar-Rankin Drug Co.,
From what is said in the prevailing opinion, it seems that except for section 29-102 the majority would unquestionably hold, on general common-law principles relating to contracts, that acceptance of the deed without more would be sufficient to bind the grantee. Under the most liberal view or interpretation of this section, *11 it contains only a negative pregnant to the contrary, which it seems would only present an ambiguity and would not show a clear intent to change the existing rule. "Statutes should be construed, if possible, to harmonize with the general policy of the State, unless the intent of the legislature is clearly to depart from that policy." 59 C. J. 1013, § 602. "In case of ambiguity, statutes are to be construed with reference to the principles of the common law in force at the time of their passage, and this rule applies whether the statute is merely declaratory of the common law or changes it." 59 C. J. 1039, § 617.
The headnote in the Reeves case, supra, did not refer to entry upon the land, but the opinion did; and in view of the foregoing principles it seems to me that the Code section here under consideration should be construed in the light of the whole decision, and as enacting into statute law nothing more nor less than was held therein. In that particular case, entry under the deed may have been necessary in order that the grantee might be bound. Under the terms of the deed, the railroad company manifestly was not bound to build its railroad upon the strip of land in question. It merely obtained the right to do so. If it had not seen fit to use and occupy the land for railroad purposes, or to enter at all under the deed, it of course could not have been compelled to do so; and so, under the facts of the particular case, the covenant to build a station would not become binding in the absence of entry. In the decision the court quoted from Taylor on Landlord and Tenant, § 245, to the effect that a covenant is an agreement under seal, and that it can be created only by a deed, either a deed poll or an indenture. It was held that the particular covenant there under consideration was a covenant running with the land. Is it not true then that section 29-102 should be construed as referring to the same type of agreement, that is, an agreement which must be made either under seal or by a deed? An agreement by a grantee to assume a debt owed to a third person by the grantor is not an agreement of either character. That is to say, it is not one that must be made under seal, and it can be made otherwise than by a deed. But even assuming that the word covenant as used in this section might include such an agreement to pay a debt of the grantor as part of the purchase-money, it does not follow that the agreement is not binding upon the grantee unless he enters under the deed. A statement *12
in a deed that the grantee, as a part of the consideration, assumes a debt of the grantor, is an original undertaking between the parties thereto, and is not within the provision of the statute of frauds relating to a promise to answer for the debt, default, or miscarriage of another. Code, § 29-102; Ford v.Finney,
"A contract is an agreement between two or more parties for the doing or not doing of some specified thing." Code, § 20-101. "To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject-matter upon which it can operate." § 20-107. The principle under discussion must not be confused by the fact that the creditor of the grantor is here seeking to enforce the assumption by the grantee. That fact is wholly immaterial in construing § 29-102, because in such case the sole question is as to the meaning of the section as between the grantor and the assumer grantee. It is true that if there is no valid assumption, the creditor of the grantor has nothing to enforce; but with this exception his right of action as against the grantee depends upon other principles which are not relevant in construing this section of our Code. The section has no reference whatever to the right of a creditor of the grantee, but relates only to the enforceability of a covenant between the grantor and the grantee. In the opinion of the writer, it can not be said on sound authority that a grantee who actually intended to assume a debt of his grantor, as stipulated in the deed, must not only have accepted the deed, but must also have entered into actual possession of the land, before the agreement can be held enforceable against him. The sole question is one of assent; and in the absence of fraud, accident, or mistake, mere acceptance of the deed is conclusive evidence *13 of such assent, and the agreement may be enforced regardless of any question of possession. Even if the section may be correctly held applicable to an assumption agreement, such as that involved in the present case, it should be construed as stating only that under certain conditions the assumer will be bound, without declaring or intending that he should be bound in no other circumstances. It simply declares that if the grantee accepts the deed and enters thereunder he will be bound. This is not a statement that he will not be bound unless he enters. In other words, the section can not properly be considered as exhaustiveof the conditions under which a grantee may be bound, because, as indicated above, the assumption agreement is not within the statute of frauds, and, under general principles of law, all that is required as to the present element is a meeting of the minds, or "assent of the parties to the terms of the contract." Code, § 20-107. Surely neither the codifiers nor the legislature could have intended to alter or qualify this plain, fundamental common-law principle as to what is sufficient to make a valid contract. And yet the opinion of the majority amounts to a ruling that assent is not sufficient — there must be actual entry under the deed; and this notwithstanding the grantee has by delivery and acceptance of the deed acquired the unconditional title.
In this State "there is no livery of seizin. Possession is not necessary to the acquisition of title to land. Title goes out of the grantor and into the grantee at the moment of the delivery of the deed. The contract is thereby fully executed." Beard v.White,
If it might be thought that if the promise was to pay the purchase-money or a balance of purchase-money to the grantor, the latter might recover in assumpsit without regard to the covenant (but see Young v. Young,
In Kytle v. Kytle,
If § 29-102 can not be properly construed as changing the law, outside authorities are pertinent, and they might be relevant even in determining the previous law and in deciding whether a change was intended. Therefore I quote as follows: "It is stated generally in the text-books that an actual entry upon the demised premises by an assignee of the lease is not requisite in order to charge him with the performance of covenants running with the land. But we think this proposition will hold good only in respect of assignments by deed recorded and delivered; which are usually regarded as effecting a transfer, not only of title, but also of the legal possession." Sanders v. Partridge,
In view of the foregoing authorities, and on principle, the writer is of the opinion that the grantee in this case, having accepted the deed containing a recital that he assumed the debt of the grantor, should be held liable on the covenant or promise, notwithstanding he did not sign the deed or enter thereunder, and that section 29-102 of the Code of this State, on proper construction, does not provide otherwise.
GRICE, Justice, concurs in the foregoing opinion. *18