16 S.E.2d 485 | Ga. Ct. App. | 1941
1. If the title to realty is involved, and the controlling issue as shown by the petition is that of title, the superior court has exclusive jurisdiction.
2. At law, to pass title, delivery is essential to a deed; but this does not necessarily involve the physical delivery of the instrument. Such delivery may be actual or constructive, both of which must be determined under all the facts and circumstances governing the intention of the grantor to deliver, and the grantee to accept, the instrument as a deed of conveyance.
3. Trover in this State takes the place of replevin and detinue at common law, and, in the case of deeds where such action is available, involves only the conversion of the res in question, and does not extend to include the title to land of which the deed is only evidentiary. If the title to the land under the petition is the primary purpose of the suit, and not the title to the deed itself, the civil court of Fulton County is without jurisdiction. Under the facts of this case the only question to be determined, in order to decide who has the title to the land, is whether the deed was delivered by the grantor during his lifetime.
4. The petition as a whole, construed most strongly against the plaintiff, involves the delivery of the deed directly affecting the title or the passing of title to land, and the trial of title. Therefore the civil court of Fulton County is without jurisdiction of the cause.
1. Respecting titles to land, in this State, the superior courts have exclusive jurisdiction. Code, § 2-3201.
2. With reference to the transfer of estates in lands "livery of seisin" gave way to the usage of deeds as symbolic of transfers. From the first inception of the use of written transfers or deeds to lands there was connected with such use the idea of the delivery of the deed itself as symbolic of the transfer of the lands analogous to "livery of seisin." That is, the physical transfer of the document was necessary to make it operative. In modern times we have passed from the early conception of manual transfer of the document itself to the "modern view" of intention of the parties with regard to the delivery of the instrument. This now seems to be the prevailing view in practically all, if not all, of the jurisdictions, and takes control over the idea of manual transfer. For the deed to become operative as a transfer of title it must be established by facts and circumstances attendant upon the transaction sufficient to show that it was the intention of the grantor to deliver, and of the grantee to accept, the deed as an instrument designated to transfer title "inter vivos." The manual possession of the deed or the physical possession of the property, and in some cases no doubt the possession of both, is not conclusive as to delivery or vice versa. 4 Tiffany on Real Property, §§ 1033-1034; Beard v.White,
3. This leads us to consider, under the petition as a whole, the purpose of the transaction in the instant case. Is it to recover the delivered deed itself as a muniment of title or its inherent value thereof as a conveyance, or is the purpose of the action to contest the issue of delivery of the deed itself and thereby try the title to the land described in the deed? If the former the civil court of Fulton County has jurisdiction, if the latter title to the land is the gist of the cause of action and the superior court of Fulton County has exclusive jurisdiction.
Let us examine the action of trover. Generally speaking, trover may be maintained to try the wrongful conversion of muniments of title to real property. 65 C. J. 20, 21, § 16;Coursey v. Curtis,
So it seems sound thus far to conclude that if, under all the allegations of the petition, it sufficiently appears that the deed in question was delivered to the plaintiffs by the deceased during his lifetime, and his intention is conclusively manifest from a construction of the petition as a whole, the court erred in sustaining the demurrer, but if the reverse is true, the court did not so err.
4. It thus becomes necessary to construe the petition most strongly against the plaintiffs from the viewpoint of its material allegations. Before doing this it might be helpful for us to inquire as to the status of the defendant. It is an administrative representative of the deceased, with property and testamentary rights. It is a quasi court officer. As executor, it has the sacred duty of standing in the place of the deceased and administering his estate as directed. It has in its favor the presumption that it has not and will not by any act of omission or commission fail to perform or to exceed its authority in the discharge of any of its duties. As executor, it entered this litigation so clothed. Now as to the petition, it is true that it alleges a delivery of the deed. It likewise alleges that the defendant is the executor of the last will of the grantor, A. C. Belcher; it alleges that as such executor the defendant obtained the possession of the deed, along with the general effects of the deceased; that the deed was unrecorded. There are allegations to the effect that the plaintiffs are in possession of *800 the realty described in the deed; that the deed was kept in a deposit box used by the families of the deceased and the plaintiffs; and that the value of the deed is $2500. Under the above allegations we know of no presumption in favor of the plaintiffs which would tend to establish that the deed was delivered. It is significant that the value of the deed is placed at $2500. It is likewise significant that the petition is silent as to any allegations regarding a consideration for the deed and whether such consideration, if any, was or was not paid.
In view of the several presumptions in favor of the defendant, to wit, first, possession of the personalty is prima facie evidence of title (Reid v. Butt,
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.