Augusta Land Co. v. Augusta Railway & Electric Co.
79 S.E. 138
Ga.
1913
Check Treatment
Hill, J.

(After stating the foregoing facts.)

1. The controlling question to be determined is whether the agreement of August 3, 1895, was merged in the deed of June 29, 1900, and became functus officio when the deed was executed, and the rights of the parties are based alone upon the deed. Mr. Devlin, in his work on Beal Estate, says: “The rule applicable to all contracts, that prior stipulations are merged in the final and formal contract executed by the parties, applies, of course, to a deed based upon a contract to convey. When a deed is delivered and accepted as performance of a contract to convey, the contract is merged in the deed. Though the terms of the deed may vary from those contained in the contract, still the deed must be looked to alone to determine the rights of the parties.” 2 Devlin on Beal Estate, § &50a. In the ease of Slocum v. Bracy, 55 Minn. 249 (56 N. W. 826, 43 Am. St. R. 499, 500), Mitchell, J., said: “No rule of law is better settled than that where a deed has been executed and 'accepted as performance of an executory contract to convey re'al estate, the contract is functus officio, and the rights of the parties rest thereafter solely on the deed.” The deed of June 29, 1900, purports to be the consummation of the agreement of August 3d, 1895, and to convey the absolute title to the ten acres of land in dispute, and the only reference to any conditions of the agreement is to “certain conditions which have since been complied with.” The deed then conveys the fee-simple title to the land in dispute, without reference to any forfeiture or reversion. There is no recital in the deed that it is to be subject to whatever conditions the agreement provided should be incorporated in the deed. “After the *523execution of the deed, the grantee can not, in the absence of actual fraud, recover for any misrepresentations relating to the title, not covered by the covenants of the deed, as the deed is considered to be a complete relinquishment of all conflicting claims in the preceding contract of sale.” 2 Devlin on Eeal Estate, § 850a. In the case of Dunbar v. Aldrich, 79 Miss. 698 (31 So. 341), where a deed recited that it was the purpose of the grantor to give a life-estate to the grantee, with remainder in fee to his children, but in the granting part of the deed a conveyance was made to the grantee and his heirs in fee simple, it was held that the granting part of the deed controlled, and the grantee took an estate in fee simple. The court, speaking through Terral, J., said: “And especially is it a rule of interpretation of a deed that an'intention manifested in the recitals of a conveyance will be controlled by the terms of the granting part of the deed.” Where there .is a discrepancy between the recitals and the operative part of a deed, the operative part, if clear and unambiguous, must be followed. Elphinstone.on the Interpretation of Deeds, *129. In St. Phillips Church v. Zion Church, 23 S. C. 297, the plaintiff had a lease on certain land for 99 years, perpetually renewable, to be used for the purposes of a Presbyterian church, reserving the right to re-enter in case the land was used for any other purpose whatever than the erection of a Presbyterian church. The lessee assigned the lease to the Glebe Street Presbyterian Church. Afterwards this corporation contracted to sell the land to certain trustees of the African Methodist Episcopal Church, and to execute a conveyance' thereof on the payment of the purchase-money; and in pursuance of this contract the trustees were put into possession. The plaintiff commenced suit to recover the premises, or to enjoin the defendant from executing a conveyance to the A. M. E. Church contrary to the conditions upon which the defendants held the property. It was held that the lease was merged in the conveyance, and that the grantees held the property freed from the conditions in the lease. The court said: “The recital does not qualify the deed in any particular. Its office was only to trace the history of the transaction and to describe the relation of the parties in regard to the property and to each other, leading up to the grant, which was absolute in its terms. Deeds are to be taken most strongly against the grantors; and if the form of the conveyance is absolute, as here, nothing- is to be *524taken as intended that is not plainly expressed in the deed.” In Cullen v. Sprigg, 83 Cal. 56 (23 Pac. 222), the trustees-oí a city adopted a resolution providing that certain lands should he granted upon the condition that the lands should be occupied and improved •within six months from the date of the certificate; and if within a year therefrom improvements of a certain amount were not made, the lands should revert to the city. The deed to the defendant’s grantor recited a sale made to him that day on the conditions of the resolution, and an agreement on his part to make the improvements, hut these recitals preceded the granting clause, which together with the habendum, in consideration of the full receipt of the -purchase-money by the city, purported to vest in the grantee the full title of the city in fee simple, without condition. It was held that the grant was absolute. The court said (p: 225): “It is true that in the deeds to Evans, which were made on the day of the sale, there is a recital of a- sale upon the conditions prescribed in the resolution, and also of an agreement by Evans to complete all improvements required .by them; but the granting part and habendum of the deed, in consideration of the full receipt of the purchase-money by the city, purports to vest in the grantee the full title of the city, in fee simple absolute, without condition precedent or subsequent. To create a condition in a grant, apt and appropriate words- must be appended to the grant, which ex vi termini import that the vesting or continuance of the estate is to depend upon the condition. Craig v. Wells, 11 N. Y. 320; Jackson v. McCallen, 8 Cow. 296. An estate upon condition can not be created by deed, except when the terms of the grant will admit of no other reasonable interpretation.” In Webb v. Webb’s Heirs, 29 Ala. 588, 606, the court said: “The granting clause determines the interest intended to be conveyed, and prevails over the introductory statement. Kershaw v. Boykin, 1 Brevard (S. C.), 301. This is not intended to disturb the well-settled rule, that if two clauses in a deed are so repugnant that they can not stand together, the first prevails over the last.” See Dickson v. Wildman, 183 Eed. 398 (105 C. C. A. 618). It is well settled that a deed will not be construed to create an estate upon condition, unless the language of the deed, according to the rules of law, or proprio vigore, imports a condition, or the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated. Thompson *525v. Hart, 133 Ga. 540, 543 (66 S. E. 270); 2 Devlin on Deeds, § 848. In Nelson, v. Atlanta &c. Ry. Co., 135 Ga. 572 (69 S. E. 1118), it was held: “A railroad company made to an- owner of land lying near tracks used by it a written proposition to purchase a strip of such land ‘on the following terms, covenants, and conditions/ setting out that the strip was to be used, in connection with other property, in a general plan for railroad terminals, and agreements as to erecting a wall, moving a public street, not using certain land for stated purposes, etc. It provided: ‘the covenants and agreements herein stated to be incorporated in the deed to said property, so as to run with the land sold.’ The proposition was accepted in writing. Later the purchaser assigned its rights to another company, and the seller, on receipt of the purchase-price, made to such assignee a deed in which were, included the covenants and agreements of the contract. Held, that the contract was merged into the deed, and could not thereafter be enforced against the original purchaser as containing personal covenants.” From the authorities we conclude that the agreement of August 3d, 1895, was merged in the deed of June.29th, 1900, and became functus officio when the deed was executed; and the rights of the parties are based alone upon the deed.

2. But it is insisted that the president of the Augusta Land Company was not authorized, without corporate action on the part of the land company, to execute the deed. The petition alleges that on June 29, 1900, “the then president of your petitioner, in the name of your petitioner, executed to said Augusta Bailway and Electric Company a deed conveying the said ten acres of land/’ etc. A copy of the deed is attached, and it is recited in the deed that the party of the first part (Augusta Land Company) “has caused its corporate seal to be affixed hereto.” In Powell on Actions for Land, 273, 274, § 221, the author says: “Wherever a deed purports to have been executed on behalf of a corporation by an official or executive agent of the company, and the corporate seal is 'affixed, the presumption is that the official or executive agent was authorized to execute the conveyance on behalf of the corporation.” To the same effect, see Carr v. Ga. Loan &c. Co., 108 Ga. 757 (33 S. E. 190); Nelson v. Spence, 129 Ga. 35, (5) 36 (58 S. E. 697); Taylor v. Hartsfield, 134 Ga. 479 (68 S. E. 70). There was no effort on the part of the Augusta Land Company to *526repudiate the act of its president in signing the deed, so far as the record discloses; and the rule is that if the principal has notice of an unauthorized act of another in his behalf, he must repudiate the act within a reasonable time, or he will be deemed to have ratified it. Mechem on Agency, § 153, et seq.; 31 Cyc. 1275; Whitley v. James, 121 Ga. 521 (49 S. E. 600). And the above rule applies to a case where the principal is a corporation, as well as to a case where the principal is an individual. Gold Mining Co. v. National Bank, 96 U. S. 640 (24 L. ed. 648); Mechem on Agency, § 158; 2 Thompson on Corp. (2d ed.) § 2019. The plaintiff allowed the defendant’s predecessor to construct tracks and operate cars through the property, and to remain in possession of the property in dispute for a number of years, without any effort to repudiate the act of the plaintiff’s agent in executing the deed, until the commencement of this suit, and received whatever benefits accrued to it by reason of the building and operation of the car lines as set out in the petition. The petition alleges no facts which would excuse the plaintiff for a failure to bring suit earlier. There is no explanation as to why the plaintiff did not know, or could not have known by the exercise of ordinary care, that the deed had been executed. With the deed signed by the president of the company outstanding, and with the defendant company building a line of railroad on and through the property of the plaintiff, it is hardly conceivable that the plaintiff did not know of the existence- of the deed and how it was signed. If the plaintiff had knowledge of the execution of the deed, and took no steps to repudiate it, although the defendant was in possession under it, it is bound by it; if it had no knowledge of the execution of it at the time, but since its execution it has by its acts ratified the execution of the deed, it is bound by its terms. The deed was absolute on its face, and no conditions in the agreement were incorporated in the deed; and this being true, there could be no right of reverter in a case of this kind. Whatever conditions were embraced in the agreement were merged in the absolute deed, which contained no conditions. It follows from what has been said, and from the authorities cited, that the defendant has a good title to the premises in dispute; and the court below did not err in sustaining the demurrer to the petition.

Judgment affirmed.

All the Justices concur.