Where the rights of the respective parties to the instant suit for the recovery of land depend on what was actually decreed in a former case instituted in the same court, and the plaintiffs introduce in evidence the original court papers in the former suit, including the original decree bearing the signature of the presiding judge, and the defendant introduces the minutes of the same proceeding, but where there is a material difference in the description of the property as set forth in the original papers and as revealed in the minutes, the original decree, and not what appears on the minutes, will be taken as evidencing what actually constituted the pronouncement of the court.
Nos. 14021, 14022. APRIL 15, 1942.
W. L. Deck, Mrs. Mabel T. Anderson, C. A. Deck, J. C. Deck, and Cecil Wellborn brought an action for land and mesne profits against Nettie Deck. It was alleged: "Plaintiffs are each the owner of an undivided one-sixth interest in certain real estate lying and being in" Walker County, "and they bring this their suit to recover the same, each suing severally for his interest therein, which real estate is described as follows" (describing it). "The defendant herein is the owner of an undivided one-sixth interest in said land, and is in possession of the same, claiming the fee-simple title thereto. Petitioners are informed and believe that the defendant claims the fee simple title to the land by virtue of a deed from Alice A. Deck to the defendant, dated February 12, 1936. All of said parties hereto claim title to said land through a common source and by virtue of a certain deed of Laura Jackson to Alice A. Deck, dated October 28, 1887. Under said deed, said property was sold and conveyed `unto the said Alice A. Deck for and during her natural life, with remainder over at her decease to the heirs of her body.' [A copy of the deed is attached to the petition.] Mrs. Alice A. Deck died March , 1940. At the date of her death she left surviving as heirs at law petitioners and the defendant, all being children of said Alice A. Deck, except Cecil Wellborn, who is a grandson of Alice A. Deck, being the son of Ida Deck Wellborn, the daughter of Alice A. Deck. Ida Deck Wellborn died during the year 1906, leaving one child, Cecil Wellborn. Upon the death of Alice A. Deck, an undivided one-sixth interest in and to said land vested in each of petitioners and in defendant. The
defendant has taken possession of said land, claiming it as her own, to the exclusion of petitioners, and is renting the same and collecting rents from the various tenants occupying the same. The rents and profits from said land are reasonably worth $750 per year. Mrs. Alice A. Deck only owned a life-estate in said lands, and could sell and convey no greater interest than was vested in her, and any deed from her to the defendant would only convey such interest as the said Alice A. Deck held in said land, and that the same has been divested by the death of Alice A. Deck." Petitioners prayed that "each recover his interest in and to said lands, and that the court by decree find an undivided one-sixth interest in said land to belong to each of petitioners," and that "each of petitioners have judgment against the defendant for such mesne profits as may be due."
The defendant answered, asserting that she owned the property described in fee simple, and admitting that she claimed title under the deed from Alice A. Deck to defendant, also described in the petition.
Upon the trial the plaintiffs introduced in evidence the petition and proceedings in the case of Peter S. Anderson and his daughter Alice A. Deck, against Laura F. Jackson, another daughter of Peter S. Anderson, and against the children, all minors, of Alice A. Deck, being a designated case brought in the superior court of Walker County, at the February term, 1889, in which petition it was alleged that on March 4, 1871, Peter S. Anderson conveyed to his daughter Alice A. Deck lots of land 117 and 136 in the 26th district and third section of Whitfield County, "intending to convey to her only a life-estate with remainder over to her children;" that whether the deed does so convey said lots petitioners were in doubt; and there was attached to that petition a copy of the deed referred to. In that suit it was further alleged that previously the plaintiff Peter S. Anderson had conveyed to his daughter Laura F. Jackson in fee lots of land 59 and 60, of the 8th district and 4th section of Walker County, and that "the deed conveys the fee of such parts of said lots as said Peter S. Anderson then owned." And a copy of that deed was attached to the petition. Continuing, that petition alleged: "Afterwards, to wit, on the day of 18 , the said daughters of said Peter S. Anderson, with his consent and approval, swapped their respective lands.
Said Alice A. conveying the said two Whitfield County lots to said Laura F. Jackson in fee. And the said Laura F. conveyed the said Walker County lots to said Alice A., making a life-estate to her, with remainder over to her children, intending that all the children of said Alice A., born and to be born, should share in said remainder interest. This was in accordance with the wishes of said Peter S. Petitioners say that the said Walker County lands are much more valuable than the Whitfield County lands — say by seven hundred dollars. And the trade was a very advantageous one to the children of said Alice A. A railroad has since been constructed through the Walker County lands, rendering them still more valuable. On said lots 59 and 60 . . along said railroad there are sites suitable for school buildings, stores, and residences, and there is a demand for said sites if the title could be relieved from said remainder interest. The sale of a portion of said lot would make the residue of that lot and said lot 60 more valuable than it will be, and a portion of the proceeds of said sales equal to the present value of the remainder in the portion so sold would be invested in improvements on the portions not sold, so as to greatly enhance the value of the remaining portions. . . The portion of lot 59 which could be sold, as before stated, is the south half of said lot, and that on lot 60 is about one acre lying south of the public road known as the Cove Road. The children of said Alice A. are all minors, and their names are Ida B. Wellborn, age 17 years; Peter S., Willie, George D., Nettie, and Mabel Deck, all under fourteen years old.
"Petitioners pray that these children and said Laura F. Jackson be made parties to this proceeding, and that a guardian ad litem for said minors be appointed by the court to represent their interest. They pray that the deed from petitioner to Alice A., conveying to her the Whitfield lands, and the deed from Alice A. to Laura F., be so reformed, if necessary, as to create a fee-simple title to said land in said Laura F. And that the deed from Laura F. Jackson to Alice A. Deck . . be so reformed as to create a life-estate to all said lands in Alice A., with remainder to her children and their representatives if any be dead at the termination of the life-estate, except to the south half of lot 59 and all of lot 60 south of Cove Road, and that the title to the last two named parts of lots vest absolutely in said Alice A. Deck, and that said trade be ratified and affirmed."
Service of this petition was acknowledged by Laura F. Jackson. The process issued was directed to Laura F. Jackson, Ida B. Wellborn, Peter S., Willie, George D., Nettie, and Mabel Deck, and was dated January 26, 1889. Ida B. Wellborn, Peter S., Willie, George D., Nettie, and Mabel Deck were served personally on February 1, 1889, and Chester (C. A.) Deck was served "by leaving a copy of the petition for said minor with his father and mother" on January 27, 1890. Chester Deck was born on July 21, 1889, while the case was pending. Jacob Deck, husband of Alice A. Deck, was appointed guardian ad litem for the minors (other than Mrs. Wellborn), and filed an answer as such, consenting that the deeds referred to be reformed as prayed. The husband of Mrs. Wellborn was appointed guardian ad litem for her, and answered likewise.
The decree granting reformation of the deed from Laura F. Anderson to Alice A. Deck provided that this deed "be reformed as prayed for; that is to say, that the said deed be so reformed as to convey to said Alice A. Deck the entire interest, and fee-simple title to the south half of said lot No. 59, and also to all of said lot 60 which lies south of the Cove Road."
The defendant introduced in evidence the minutes of Walker superior court where this decree was recorded, showing that the decree as to lot 60 contained the clause, "all of said lot 60 which lies north of the Cove Road," the deed from Alice A. Deck conveying to the defendant the land in controversy; and the will of Alice A. Deck, in which the defendant was named as sole beneficiary. The testimony of several witnesses related principally to the question of the rental value of the land sued for.
The judge directed a verdict in favor of C. A. Deck, J. C. Deck, and Cecil Wellborn, and against W. L. Deck and Mrs. Mabel T. Anderson, leaving the jury to determine only the amount of mesne profits. The plaintiffs last named were in life when the suit for reformation was filed, and were served personally in that proceeding. C. A. Deck was born several months after the reformation suit was filed, and service upon him was made only by leaving a copy with his parents. J. C. Deck was born after the reformation suit had ended, as was also Cecil Wellborn, whose mother, Mrs. Ida Wellborn, was personally served with the reformation suit.
In writ of error No. 14021 Nettie Deck assigns error on the
overruling of her motion for new trial. In writ of error No. 14022 W. L. Deck and Mrs. Mabel T. Anderson complain of the overruling of their motion for new trial.
The two cases can be disposed of in one opinion. The respective parties will be referred to as they are designated in the trial court.
Four of the plaintiffs together with the defendant are the five children who survived Alice A. Deck. Another child survived her, but died subsequently, and the remaining plaintiff is the only child of the last-named child.
A recital in a deed that said property was sold and conveyed "unto the said Alice A. Deck for and during her natural life, with remainder over at her decease to the heirs of her body," conveyed a life-estate to Alice A. Deck and a remainder to the children living at her death. Ford v. Cook, 73 Ga. 215;Burney v. Arnold, 134 Ga. 141 (67 S.E. 712); Tate v.Tate, 160 Ga. 449 (128 S.E. 393); Waters v. Donaldson,184 Ga. 450 (2) (191 S.E. 429). The sole child of a child who died since the death of Alice A. Deck succeeded to his parent's interest under such conveyance. Code, § 85-504. While it is not expressly so admitted in the pleadings, the record shows that both the plaintiffs and the defendant claim under a common propositus. This being true, such common grantor will, for the purpose of the case, be treated as the true and original source of title, and the plaintiffs may recover by showing that such claim of title as they derived from the common source is a better claim than that exhibited by the defendant from the same source. Powell on Actions for Land, § 361. All parties claim under a decree of the superior court of Walker County, entered at the February term, 1889, reforming a deed. It was a term-time decree, and no attack thereon based on any lack of jurisdiction of the court of the subject-matter is made. The plaintiffs attack it in part on the ground that certain afterborn children were not served. The merits of this contention we find it unnecessary to decide. The parties differ as to what was decreed, the defendant insisting that the decree placed the fee-simple title in Alice A. Deck to all of lot 60 lying north of Cove Road. The defendant claims the land under a deed to her from Alice A. Deck, and under
the will of said Alice A. Deck, in which the defendant was named as sole beneficiary. The plaintiffs insist that under the decree title was placed in the said Alice A. Deck to "all of lot 60 lying south of the Cove Road." The plaintiffs sue for a five-sixths interest in the following: "All that tract or parcel of land in the 8th district and 4th section of Walker County, Georgia, described as follows: Beginning at the northwest corner at a white-oak tree at A. L. Howard's line; thence east with public road to the line of lot No. 59; thence south to the Cove road; thence west to the line of Lawrence lane; thence north to the original point. Containing one hundred (150) fifty acres, more or less, of lot of land No. 60." Both the plaintiffs and the defendant introduced proof as to what particular land was dealt with in the decree. The plaintiffs introduced in evidence the originals of the former proceedings in Walker superior court, including the original decree bearing the signature of the presiding judge. This was sufficient proof of the contents of the decree. In Sellers v. Page, 127 Ga. 633 (56 S.E. 1011), it was ruled: "When the record of a court in which a case is being tried is material evidence in a case, it may be proved by the production of the record itself." The defendant introduced in evidence the original minutes of Walker superior court, where this decree was recorded. This was another way of establishing the fact that the decree had been rendered.
As shown above, there was a material conflict between what was contained in the original decree as signed by the judge, and what the minutes disclosed with respect to this. If, as between the two, the original decree itself is to govern, the plaintiffs are entitled to recover. If what the minutes reveal on this subject is to outweigh what is contained in the original decree, then (waiving the attack on the service as to some of the remaindermen) the defendant is entitled to prevail. It thus becomes most material to determine what the court actually decreed; and the question presents itself whether in the trial of the instant case effect should be given to what is contained in the original decree bearing the signature of the judge, or to the original minutes of the court wherein the decree was recorded, when there is a material variance between the two. Counsel for one of the parties relies on the following line of argument: The Code, § 24-107, provides that the minutes must be read each morning by the clerk in open court; and further, that
they must be signed by the judge. And provision is made for the amendment of entries on the minutes. § 81-1201. One text-book makes the statement that while in modern courts the parchment roll is discarded, the court records still retain their character as a judicial memorial of high and supereminent authority. 7 R. C. L., 1017-1018. And in another it is stated that the acts of a court of record are known by its records alone, and that the court speaks only through its record. 14 Am. Jur. 350. InBowden v. Taylor, 81 Ga. 199 (6 S.E. 277), are these words: "The only legal way to prove proceedings of the superior court is by an extract from the minutes of that court, duly certified by its clerk." "The headnote to a case, . . is so far law only as it is sustained by the judgment of the court in the case." Such is the statement of Chief Justice Lumpkin in Denham
v. Holeman, 26 Ga. 182 (71 Am. D. 198), restated by Bleckley, C. J., in Kinnebrew v. State, 80 Ga. 232, 234 (5 S.E. 56). See Frazier v. State, 15 Ga. App. 365, 366 (83 S.E. 273);Walker v. Cairo, 31 Ga. App. 307 (121 S.E. 138). InBowden v. Taylor, supra, this court was dealing with a case where in a suit in a justice's court the plaintiff offered in evidence an original order of the judge of the superior court. This was objected to on the ground that if there was such an order there should be a certified copy thereof taken from the minutes of the court; and this court held that this ground of objection was well taken. The correctness of the ruling is not to be doubted. Belt v. State, 103 Ga. 12 (29 S.E. 451);Cramer v. Truitt, 113 Ga. 967 (39 S.E. 459). An analysis of what was actually ruled in Bowden v. Taylor, appears inOdell v. Dozier, 104 Ga. 203 (30 S.E. 813). In the opinion in the Bowden case appears the following: "The only legal way to prove the proceedings in the superior court is by an extract from the minutes of that court, duly certified by the clerk thereof. While it is doubtless true that the order offered in evidence bore the genuine signature of the judge who granted it, yet it was not sufficient to show that it was passed during the term of the court and made the judgment of the court. It may have been signed by the judge, and yet may not have been the judgment of the court; and, as said before, the only legal way to prove that it was a judgment of the court was an extract from the minutes of that court, duly certified by the clerk." This language must be construed with reference to what ruling was
actually before the court. While the statement made by the learned Justice in the latter part of the extract would seem to justify the position of counsel for the defendant, when read in the light of the entire case it does not support them.
The distinction should be kept in mind between the rendition of the decree and the placing of the same on the minutes; the one is judicial, the other ministerial. Mize v. Harber, 189 Ga. 737,741 (8 S.E.2d 1). "The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external and incontestable evidence of the sentence given, and designed to stand as a perpetual memorial of its action. It is the former, therefore, that is the effective result of the litigation. In the nature of things, a judgment must be rendered before it can be entered." 1 Black on Judgments (2d ed.), § 106. After further discussion the same author says: "And it follows, a fortiori, that if the entry, though attempted to be made in due form, does not correctly record the sentence of the court, or is defective or ambiguous or otherwise exceptionable, still this will not weaken the force of the judgment as a judgment." Again, in § 110 of this valuable work, the same author says: "The object of this entry is to furnish an enduring memorial and incontestable evidence of the judgment, and to fix its date for purposes of appeal or creating a lien. But, as was stated in the beginning of this chapter, this proceeding is ministerial only, and is not essential to the validity of the judgment itself. It is none the less the judgment of the court because not entered by the clerk." Another well known author states as follows: "Expressions occasionally find their way into reports and text-books, indicating that the entry is essential to the existence and force of the judgment. These expressions have escaped from their authors when writing of matters of evidence, and applying the general rule that in each case the best testimony which is capable of being produced must be received, to the exclusion of every means of proof less satisfactory and less authentic. Rendition and entry are separate acts and different in their nature. The rendition of a judgment is a judicial
act; its entry upon the record is merely ministerial. A judgment is not what is entered, but what is ordered and considered." Freeman on Judgments (5th ed.), § 46. Again, in § 47, he says: "The ministerial act of the clerk must be supported by a judicial act pronounced by the court in express terms, or in contemplation of law." The authorities cited by Freeman are numerous. They have been examined, and fully support the text.
In Clymer v. Cameron, 55 Miss. 593, 595, it was said: "It is only as a substitute for the original that a copy is ever admitted. The original is always the best evidence, and it is only because of the impossibility or inconvenience of producing the original that a copy is admitted in its stead in any case." It was held in Lee v. Carrollton Savings Loan Association,58 Md. 301, that the entry of judgment without any order or authority is void. In Davis v. Shaver, 61 N.C. 18 (Phill.) (91 Am. D. 92), it was held: "Entry of judgment is merely memorial of what the judgment was; but the judgment itself is not what may be entered, but is what is considered and delivered by the court." In Kinkel v. Chase, 102 Kan. 275 (169 P. 1134), it was held that "The omission of the clerk to perform the ministerial duty of recording a judgment does not destroy the judgment; nor does its validity or effect remain in abeyance until it is formally entered on the journal." In Lacoste v. Eastland, 117 Cal. 673
(49 P. 1046), it was ruled that a judgment entered by the clerk of court who had no authority to enter the same is void. In Platnauer v. Superior Court, 32 Cal.App. 463 (163 P. 237), it was held that "The actual rendition of a judgment being the judicial act, and the entry thereof merely ministerial, the latter must be supported in all vital essentials by the previous order of the court." In Berry v. Equitable Gold Mining Co.,29 Nev. 451 (91 P. 537), it was ruled: "A decree for a perpetual injunction entered by the clerk was void on its face, where it was unsupported either by the verdict rendered or by an order of the judge directing its entry." In Dockstader v. People,43 Colo. 437 (97 P. 254), it was said: "A minute entry by a deputy clerk on the record of a criminal prosecution, without an order of court, that the jury, being unable to agree, were discharged, and that the trial was continued to the next term, was unauthorized and ineffective for any purpose." Perhaps the most emphatic language on this subject found in any of the authorities
is that used by the St. Louis Court of Appeals in Decker v. St. Louis Southern Railway Co., 92 Mo. App. 50, as follows: "The clerk of a court who enters a judgment without an order from the court is guilty of a monstrous usurpation of authority, and one which might have ruinous consequences."
While not all of the foregoing decisions were on the precise issue here involved, they are all a part of a large stream of authorities flowing in the same direction, and rule in principle, that, regardless of the ministerial act of the clerk, it is the actual pronouncement made by the presiding judge that constitutes the judgment or decree, and not what is entered on the minutes. When, as here, there is a conflict between the original decree, signed by the presiding judge, and what is contained in relation thereto on the minutes of the court, the former and not the latter controls.
Counsel for the defendant in their brief ask this court to bear in mind that in case 14021 no question is involved as to whether the property was properly described in the final decree in the case filed in 1889, or as to whether there was a variance between the original decree and the minutes of the court. We can not accept this construction of the issues involved. The court in case 14021 directed a verdict against Nettie Deck; and on her motion therefor refused to grant a new trial. If under the pleadings and the evidence she was not entitled to prevail, the court did not err in denying her a new trial. Since, as pointed out above, she could not prevail unless effect be given to what appears on the minutes of the court, the natural sequence is that her right is determined by what has been ruled above.
Upon application of the foregoing principle, it follows that the judgment overruling the motion for new trial in case No. 14021 is affirmed, and the judgment overruling the motion in case No. 14022 is reversed.
All the Justices concur.