Coniff v. Hunnicutt, 157 Ga. 823

Coniff v. Hunnicutt

157 Ga. 823 | Ga. | 1924

Hines, J.

(After stating the foregoing facts.)

The instruction of the court to the jury, to which the plaintiffs except in the first ground of their amendment to their motion for new trial, states a correct abstract principle of law. The registry of a deed, not attested, proved, or acknowledged according to law, is not constructive notice to a subsequent bona fide purchaser. Herndon v. Kimball, 7 Ga. 432 (50 Am. D. 406); Gardner v. Granniss, 57 Ga. 539, 557; Williams v. Smith, 128 Ga. 306, 314 (57 S. E. 801); Donalson v. Thomason, 137 Ga. 848 (3) (74 S. E. 762); Civil Code (1910), § 3320. We think this instruction was applicable under the facts of this case, and was not erroneous for any of the reasons assigned by the movants.

The plaintiffs except to the charge set out in the second ground of the amendment to their motion for new trial, on the ground that it ignores the case made by them; and they except to that portion of said charge which instructed the jury that the record of the deed from C. L. Cason to Ella Cason was not notice thereof to the defendant, on the grounds (1) that said deed did convey whatever title the grantor had to the grantee; (2) that the statement that it was not executed according to law might lead the jury to infer that it was invalid and of no effect; (3) that it was not a contest between two deeds, as the defendant had no deed; *837and (4) that the court should have instructed the jury why it was not executed according to law, and should also have told the jury that, if this deed had but one witness, it conveyed whatever title C. L. Cason had to this land. It will thus be seen that the plaintiffs do not except to this instruction upon the ground that it does not state correct principles of law; and thus we are relieved of the necessity of determining whether it states correct abstract legal principles. It does not seem to us that the exceptions to this instruction are well taken. An instruction applicable to a theory of defense urged by the defendant necessarily, for the time being at 'least, ignores the ease of the plaintiff; and this is so because of the lack of judicial capacity to embrace in a single instruction the contentions of both parties, and the principles of law applicable to such contentions. The exception to this instruction, that the statement therein that, this deed was not executed according to law might lead the jury to infer that it was invalid and of no effect, is not well taken, for the reason that the court elsewhere in its charge told the jury “that this conveyance is such as that it conveyed the title to this lot out of C. L. Cason into Ella Cason.” In Anew of this specific instruction the jury would not have been misled by the charge complained of into believing this instrument was nulí and void. This disposes of the fourth exception to the above portion of the charge set out in this ground of the amendment to the motion for new trial. This charge was not erroneous for the third reason assigned. It is true that it was not a contest between two deeds, as the defendant did not rely on a deed to defeat the plaintiffs; but she did rely on a bond for title, executed with the formality prescribed for the execution of a deed, with the purchase-money fully paid. Such a bond is in a sense a deed of bargain and sale. Gleaton v. Wright, 149 Ga. 220 (100 S. E. 72). Besides, the court did not tell the jury that the contest was between deeds.

The plaintiffs except to a long excerpt from the charge of the court in the third ground of the amendment to their motion. Their counsel having invoked a portion of the instructions embraced in -this excerpt, the plaintiffs cannot except to the instructions as a whole, for the familiar reason that a party cannot except to an instruction which he invokes. Conant v. Jones, 120 Ga. 568 (48 S. E. 234). But plaintiffs except to specific portions of the instructions embraced in this long excerpt from the charge. They *838except to that portion thereof in which the court instructed the jury that, if the defendant bought this lot in good faith, paid a reasonably valuable consideration for it, took a bond for title thereto, and paid the purchase-money in full without notice of any outstanding title, she would be protected against the deed from C. L. Cason to Ella Cason. The exception to this portion of the charge is, that it is the rule which obtains between persons sui juris, and is not applicable to minors. One who buys land for value, without knowledge or notice of a senior, unrecorded deed from the same vendor, and takes a bond for title or deed which is duly recorded, acquires a title superior to that of the vendee in such senior deed. Wadley Lumber Co. v. Lott, 130 Ga. 135 (60 S. E. 836); Payton v. Payton, 148 Ga. 486 (97 S. E. 69); Gleaton v. Wright, supra. We know of no law which makes an exception to this rule in favor of minors, and counsel for plaintiffs have not cited any authorities holding such doctrine. Besides, the senior unrecorded deed in this case was made to the mother of the plaintiffs, who claim as her heirs at law. The consequences of her failure to have her deed recorded fall upon the children.

Plaintiffs also except to that portion of the instruction embraced in this ground which deals with the burden of proof. The exceptions to this portion of the charge are fully set out in the statement of facts. These exceptions seem to be based on the idea that the defendant pleaded a prescriptive title, and that the court erred in failing to charge that these minors had seven years after their majority in which to bring suit to recover this land. The defendant does not in her answer, as we construe the same, set up prescriptive title to this land; but on the contrary asserts that she has a legal title thereto, under a chain of title from the State, through mesne conveyances,- into herself. This being so, the exceptions to the above instruction on the above ground are not well taken.

Plaintiffs except to the instruction set out in the fourth ground of the amendment to their motion for new trial, on the grounds: (1) that that portion of it from (a) to (b) was irrelevant,- on the ground that whatever 0. L. Cason did after making the deed to this wife in no way affected the plaintiffs; (2) that said charge contains an expression of opinion by the court upon the evidence; and (3) that as 0. L. Cason had conveyed his title to Ella Cason in 1901, he had no title to the property and had no *839right to give a bond for title to convey the interests of the plaintiffs, who were minors at the time. We think the second exception to this instruction is well taken. The court instructed the jury that the bond for title from C. L. Cason to the defendant was his individual obligation; and that on the payment of the purchase-money as stipulated therein, the burden was upon him to execute to the defendant a good and sufficient title to this lot of land, as he obligated himself to do in this bond. One of the vital issues in this case is whether the defendant purchased this land from 0. L. Cason in his individual capacity or in his assumed capacity of guardian for his minor children. In the body of his bond for title to the defendant it is recited that “C. L. Cason, guardian,” obligates himself to make title to this land on the payment of the purchase-money thereof therein specified. This bond was signed by the defendant individually. At the same time he took from the defendant three notes for the deferred payments of the purchase-money, which were made payable to him as guardian. Ordinarily an obligation made by a person to whose name is added therein the word “guardian” is the individual undertaking of such person; and where notes are made payable to him, with this word following his name, they are due to him in his individual capacity. Oglesby v. Gilmore, 5 Ga. 56; Zellner v. Cleveland, 69 Ga. 633; Tedder v. Walker, 145 Ga. 768 (89 S. E. 840). The addition of the word “guardian” to the name of the obligor in a bond for title, or to the payee in notes given for the purchase-money of lands embraced in such bond, may, as between the parties, be treated as descriptio personae, and such bond, as between the parties, will be treated as the individual obligation of the maker, and such notes will be held payable to the payee therein individually. But while this is so, where a father undertakes to sell land of his minor children, as their guardian, when he is in fact only their natural guardian, and is without authority to sell the same, his children, in an action to recover their interests in such land, can show this state of facts in order to defeat the title of his vendee. His bond for title, in the form aforesaid, and notes given'by the purchaser for the purchase-money, payable as aforesaid, were competent evidence to establish the contention of the plaintiffs that their father was acting in,their behalf in making the sale of this land to the defendant, and that the defendant so treated this transaction. This *840being so, the instruction of the court, that this bond for title was an individual obligation of the father, withdrew from the jury the contention of the plaintiffs that he executed this instrument pretending to act as their guardian; and was tantamount to telling the jury, that the transaction resulting in the sale of this land by him to the defendant was a transaction in his individual capacity, and not in the character of his assumed position as their guardian. This.instruction was an intimation or expression of opinion by the court upon the evidence, and was an invasion of the province of the jury; and requires the grant of a new trial.

The plaintiffs except to the charge set out in the fifth ground of the amendment to their motion for new trial, on the grounds, that it is confusing, that it does not give the jury the law of prescription, does not tell the jury that the plaintiffs would have the right within seven years after they became 21 years of age to bring their suit, and that the defendant, to make out her plea of prescription, would have to show that she bought in good faith and held the land for seven years previous to the filing of the suit, and that on her failure to do so the verdict should be for the plaintiffs. These exceptions are without merit.

The charge of the court upon the subject of setting off improvements was incomplete, and did not accurately apply the provisions of the Civil Code (1910), §§ 5587, 5588. In charging the jury upon the form of the verdict which the jury could render, the court failed to instruct them to embody in their findings the facts required by the latter section. Boyett v. Edenfield, 144 Ga. 109 (2) (86 S. E. 222).

The plaintiffs complain of the refusal of the court to give to the jury certain instructions which were timely requested by them. We think that the principles embraced in these instructions, so far as they were correct and pertinent, were covered by the charge of the court. Eor this reason we do not think that the refusal of the court to give these instructions to the jury requires the grant of a new trial.

As we grant a new trial in this case, we do not pass upon the evidence in the record.

Judgment reversed.

All the Justices concur.