149 Ga. 103 | Ga. | 1919
This was a suit by Hilliard Wilkinson against William Dix and Miles Wilkinson, to cancel a deed. The controversy relates to a tract of land of one and a quarter acres in LaGrange,
The single question presented by the record is whether the evidence authorized the verdict. Both deeds, by their terms, are deeds of bargain and sale. Martin v. White, 115 Ga. 866 (42 S. E. 279); Hall v. Mayor &c. of Calhoun, 140 Ga. 611(2), 612 (79 S.E. 533). They were such according to the proof. Section 4198 of the Civil Code (1910), relating to the registry of deeds, provides: “The record may be made at any time, hut such deed loses its priority over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first.” The code postpones an unregistered deed only as against a subsequent purchaser in good faith and for a valuable consideration. The junior deed was first recorded; it therefore takes precedence, if made upon a valuable consideration and taken without notice, over the senior unrecorded deed from the same grantor. Lindley v. Frey, 115 Ga. 662 (42 S. E. 79); Wadley Lumber Co. v. Lott, 130 Ga. 135, 140 (60 S. E. 836). As already indicated, the evidence shows unequivocally that the grantees in the junior deed were purchasers for value. There is no proof that they, at or before the purchase, had actual knowledge of the conveyance to the grantee in the senior deed, or of the existence of any outstanding title adverse to the title which they acquired by virtue of their purchase and deed. The common grantor was in the actual possession of the land, that is, she lived in the only house, on the lot at the time of the execution of the deeds, both to the plaintiff and the defendants. The grantee in the senior deed relies upon his alleged possession
Upon what principle can the doctrine of notice be here applied ? Amanda Wilkinson was seized in fee of the premises; there was no visible and open possession of any part of the premises adverse to her claim of title. The vendees in the junior deed offered to buy her title. She executed to them a deed warranting the title. An application of the doctrine of notice agreeably to the contentions of the defendant in error would, in the circumstances of this case, amount to a subversion of it. Possession which could only deceive and mislead the most prudent man would thereby be made to serve as notice of the outstanding title of the grantee in the senior unrecorded deed. A visible state of things inconsistent with a perfect right in the person who purposes to sell is the foundation of the duty to make inquiry. Meehan v. Williams, 48 Pa. 238. But if the doctrine is applied in this case, the only duty resting upon the vendees in the junior deed was to make inquiry of the person in possession. They proposed to buy from the occupant. She agreed to sell, and to warrant title. She in effect asserted by her offer to sell, and by the deed which she executed, that she was the owner of the land and that she held possession in her own right; and under the authority of Austin v. Southern Home Association, 122 Ga. 439(4), 445 (50 S. E. 382), further inquiry by the vendees was not demanded. From the foregoing it follows that the judgment overruling the motion for new trial must be
Reversed.