12 S.E.2d 323 | Ga. | 1940
On an application to register title under the land-registration act (Code, §§ 60-101 et seq.), where it appeared that the examiner as an attorney had conducted a sale of the land by foreclosure, he having prepared the advertisement and drawn the deed conveying the land under the sale, relied on by the applicant as a muniment of title; and where this deed was attacked by one of the opposite parties to the proceeding, it was erroneous to refuse to sustain an exception of law asserting the disqualification of the examiner for these reasons, and moving that the examiner recuse himself.
At the hearing certain newspaper clippings were produced, which for the first time disclosed to the attorney for the respondent that the examiner had acted as the attorney for Small in foreclosure of the security deed more than ten years before the hearing. The validity of the foreclosure and deed were in question, and to be passed on by the examiner. His disqualification to act was suggested by attorneys for the respondent. The examiner stated, in answer to questions by the attorney for the applicants: "After looking at those newspaper advertisements under which the foreclosure sale was had, my mind is refreshed as to that transaction. I can call it to mind. I will state to what extent my employment went in that case, what I was to do, and what I actually did do. I was at the bank at that time, was cashier of the Farmers Merchants Bank. Until I saw this advertisement I had no recollection of acting as attorney in this foreclosure. After I saw this advertisement, why it refreshed my recollection. Mr. Small came to the bank, Mr. A. T. Small, and left with me this deed with power of sale, security deed, said he wanted it advertised; and I prepared the advertisement and ran it four weeks, and drew the deed and forwarded it to Mr. Small at Macon, and I never heard of it since. I was acting under his instructions as to what to do, as to what extent to go. I advertised the property for sale as shown there in this advertisement. The property was auctioned off before the court-house door in accordance with that advertisement. The foreclosure deed was drawn by me and forwarded to Macon for execution; and that was the end of my employment. I had nothing to do with the deed being signed, as to who it was to be signed by, or anything like that. So if there is any question as to the validity of the foreclosure deed in question, or its witnessing, or record, or anything like that, I had nothing at all to do with that."
After cross-examination, the attorney for the respondent stated: "My point is that you prepared that foreclosure deed; the foreclosure deed is dated March 25, or rather it recites that it is dated the 25th day of March, 1920. The only deed to secure debt that *324 was ever executed by J. W. Simmons to Mrs. R. E. Small is dated the 27th day of March, 1920. The advertisements have the correct date, March 27, but the foreclosure deed has not." The examiner agreed as to these dates. "You will recall on the previous hearing that we objected to the introduction in evidence of that deed, by reason of the fact that there was a deed to secure debt recited as dated the 25th day of March, 1920. Thereafter the petitioners introduced in evidence what they called a ratification deed, and we objected to it, and we objected to that too; and your honor let it in, ruling that you thought if there had been a mistake previously, that Mr. Small had a right to correct that by a ratification deed." The examiner agreed to that statement. "We take the position that the rights were fixed by that first deed, and that nothing he did after the institution of these proceedings could better the title of Mrs. Burgess and her son; so it seems to me that there is under investigation a question which involves a proceeding in which your honor acted as attorney, and therefore you are disqualified. You know I have the utmost confidence in you, but it just puts us in a bad shape to present it on arguing the case." The examiner then stated: "I would like to state right there, that on the former hearing I had no recollection of having acted as attorney in this case." The attorney for respondent stated: "I am sure of that, or you would have said so right then." Whereupon the attorney for the applicants stated: "Let me enter this statement, that the fact that the foreclosure deed stated that the mortgage deed was dated the 25th day of March, 1920, whereas in truth and in fact the mortgage deed was dated the 27th day of March, 1920, and that the undisputed evidence in this case shows that there was only one mortgage deed ever given by J. W. Simmons to Mrs. R. E. Small, that the difference in the date shown in the foreclosure deed from the actual date of the mortgage deed was immaterial, a typographical error, which is cured by the fact that undisputed evidence in the case shows that there was only one deed given by J. W. Simmons to Mrs. R. E. Small, which could have been foreclosed in pursuance of the deed, the mortgage deed dated the 27th day of March, 1920, and that the foreclosure deed referred to the particular land that is described in the mortgage deed, and the advertisement of the sale, foreclosure sale, and correctly describes the mortgage deed under which the property was sold." *325
The examiner announced: "Under the facts I do not think I am disqualified in the case." He so ruled in his tenth conclusion of law. The respondent excepted to that conclusion, saying: "Under the undisputed evidence as shown herein the examiner was and is disqualified to act, and that this evidence as taken down should be recommitted or submitted to another examiner appointed by the court, for his examination and report, and that the findings of fact and conclusions of law of the examiner herein should be treated as null and void. One of the most important points of this case is whether or not the foreclosure deed from G. L. Small, as attorney in fact for J. W. Simmons, to G. L. Small, was a valid foreclosure deed. The invalidity asserted by your objector was that it referred to the power of sale contained in a deed to secure debt which was nonexistent. The petitioners claim that that error had been cured, first, by evidence showing that there was only one deed to secure debt executed by J. W. Simmons to Mrs. Small; and secondly, by the ratification deed. The examiner was the attorney who prepared that deed; the attorney who made the mistake in the date; so your objector asserts that under the law he can not in the capacity of examiner or judge pass on whether his mistake was a vital one; and if so, whether or not the mistake has been cured by the ratification deed."
The jury returned a verdict sustaining the exceptions of fact, and a judgment denying the application for registration was rendered. The applicants' motion for new trial, on the general grounds, was overruled, and they excepted. By cross-bill the defendant excepted to the overruling of his exceptions of law.
In Collier v. State,
In East Rome Town Co. v. Cothran,
Judgments reversed. All the Justices concur.