169 Ga. 203 | Ga. | 1929
Lead Opinion
(After stating the foregoing facts.) “A deed to lands in this State must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or some one for him, and be made on a valuable or good consideration.” Civil Code (1910), § 4179. Notwithstanding the provisions of this section, as between the parties a deed is valid though attested by but one witness. Downs v. Yonge, 17 Ga. 295; Lowe v. Allen, 68 Ga. 225. So a deed without witnesses is legal and binding between the parties thereto, and those claiming under them as mere volunteers. Johnson v. Jones, 87 Ga. 85 (2), 89 (13 S. E. 261); Munroe v. Baldwin, 145 Ga. 315 (88 S. E. 947). The requirement of two witnesses is to be taken to apply to a “perfect deed,” which on recordation will be constructive notice to all the world. Gardner v. Moore, 51 Ga. 268, 269. “In order to authorize the record of a deed to realty or personalty, if executed in this State, it must be attested by a judge of a court of record of this State, or a justice of the peace, or notary public, or clerk of the superior court, in the county in which the three last-mentioned officers respectively hold their appointments; or if subsequently to its execution the deed is acknowledged in the presence of either of the named officrs, that fact, certified on the deed by such officer, shall entitle it to be recorded. Civil Code (1910), § 4303. If the deed is neither attested by nor acknowledged before either of the officers aforesaid, it may be admitted to record upon probate by oné of its subscribing witnesses. § 4305. So, to admit a deed to record, it must be a perfect deed. It must be attested by two witnesses. It must be attested or acknowledged, if executed in this State, as provided in section 4303, or it must be probated as provided in section 4305. If a deed purporting to convey an absolute estate in fee to the grantee is properly attested, and thereafter the maker before delivery inserts therein a provision limit-’ ing the estate of the-grantee to her life, and creating a remainder
In this State, as we have seen, a deed to land as between the parties thereto is good without attestation or acknowledgment by the grantor. In view of this principle, the grantor in the deed involved in this case, as between the parties thereto, could, after signing the same and after its attestation but before delivery, lawfully insert therein the provision limiting the estate granted to his wife for life, and granting the remainder estate in the land conveyed to his children. Whether, after delivery of a deed, the parties thereto may -consent to a material alteration therein, the authorities are in conflict. Some of the authorities hold that even after delivery the parties may consent to a change and redelivery, the new delivery constituting a re-execution, even without a reacknowledgment. 2 C. J. 1240 (§ 116), b; Baker v. Baker, 239 Ill. 82 (87 N. E. 868); Prettyman v. Goodrich, 23 Ill. 330; Abbott v. Abbott, 189 Ill. 488 (59 N. E. 958); Huffman v. Hatcher, 178 Ky. 8 (198 S. W. 236); Woodbury v. Allegheny, 72 Fed. 371; Walkley v. Clark, 107 Iowa, 451 (78 N. W. 70); Respess v. Jones, 102 N C. 5 (8 S. E. 770); Doe v. Roe, 9 N. C. 33 (11 Am. D. 738); Chezum v. McBride, 21 Wash. 558 (58 Pac. 1067); Goodwin v. Norton, 92 Maine, 532 (43 Atl. 111); Eadie v. Chambers, 172 Fed. 73 (24 L. R. A. (N. S.) 879). In most of these eases redelivery of the deed as a new instrument was held requisite. By the weight of outside authorities no alteration of a deed after it has once been
Judgment reversed.
except
Dissenting Opinion
dissenting. I can not concur in the judgment of reversal. It appears from the record that on October 31, 1924, a paper was signed by J. W. Taylor, in the form of a warranty deed, purporting to convey to his wife, Mary Taylor, who was a third wife, “forever in fee simple,” described realty upon a cash consideration of $1,000. The paper was duly attested by two witnesses, one of whom was an officer authorized to attest deeds. After the paper was thus signed and attested, Taylor added thereto, out of the presence of attesting witnesses, a clause as follows: “At her death
Rehearing
ON MOTION FOR REHEARING.
In their motion for a. rehearing the defendants in error insist that we overlooked the testimony of J. T. Taylor, who testified that his father, his father’s wife, and his father’s children, Medford and Florence, were living on the land involved in this litigation, under the deed by which said children claimed title to the land involved in this case, and.that we overlooked the principle of law contained in section 452.8 of the Civil Code of 1910, which is applicable under the facts testified to by said witness. Said section declares in part that “Possession of land is notice of whatever right or title the occupant has.” It is insisted, as Medford and Florence were in possession of this land at the time their stepmother executed her deed to this land to the bank, that their possession was notice to the bank of whatever right or title they had in or to said land. In Goodwynne v. Bellerby, 116 Ga. 901 (43 S. E. 275), this court held that where minor children resided with their father who was in possession of land to which he had the legal title, the children’s residence on the land was not sufficient to put a purchaser from the father upon notice or inquiry as to any secret equity they might have therein. In Hall v. Hilley, 134 Ga. 77 (67 S. E. 428), it was held: “If an owner of land lived in the house upon it, together with a man and his wife and child, under an agreement with the wife that if she would board him and do his washing for the remainder of his life the property would belong to her for life, with remainder to her child, presumptively the possession would be that of the owner of the legal title; and if there were no other evidence to rebut such presumption or to show notice of any right or equity on the part of the woman and her child, the rule that possession of land is notice of whatever right or title the occupant has would not apply unqualifiedly; and if a third person purchased the land from the owner bona fide for value, and without notice, he would acquire a good title.” In Manning v. Manning, 135 Ga. 597 (69 S. E. 1126),.it was held: “The pos
Plaintiffs further insist that we overlooked certain facts which appear in the record. One of these facts is that these plaintiffs in the 9th paragraph of their petition alleged that the defendants were claiming under the deed from their father to their stepmother, attested by A. L. Mueller, as a notary public and ex-officio J. P., and that the defendants in answer to this paragraph alleged that they were unable to admit or deny the allegations of said paragraph, for want of sufficient information. Movants further insist that we overlooked the fact that there was in the- record a certificate of the secretary of State showing that Mueller was not in commission as a notary public and ex-officio J. P. on the date of the deed from Taylor to his wife, which purported to be officially witnessed by him as a notary public and ex-officio J. P. These