16 S.E.2d 576 | Ga. | 1941
Delivery of a deed is essential to the conveyance of title thereby; and where the petition alleges that after the deed was executed it was safely kept by the grantor until his death, when it was found and recorded, it shows on its face that the deed was never delivered; and where the cause of action is dependent upon the validity of such a deed, the petition alleges no cause of action and is properly dismissed on general demurrer.
To the petition as thus amended the defendants filed general and special demurrers, one ground of demurrer being that the amended petition alleged no cause of action. Upon a hearing the general demurrer was sustained and the action dismissed; and the plaintiff excepted.
When the case was considered by this court before, there was nothing in the petition as amended to indicate that the trust deed had never been delivered. The last amendment, however, shows that the deed in question was never delivered by the grantor, in that it is alleged that the grantor kept both the will and the trust deed after they were executed until his death, when the two instruments thus safely kept and preserved by him were found and thereafter recorded. The first question which this court must now decide is whether or not the document relied upon as a deed was ever delivered as the law requires. If this question *807
is answered in the negative, it then becomes unimportant whether the description is sufficient or not. The Code, § 29-101, which sets forth the requisites of a deed to land, declares, in part: "A deed to lands 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." The provision of the statute that a requisite to a deed to land is that it must be delivered must be met in every case, to give validity to such deed. Although the question of non-delivery might have been raised by a special demurrer, it was also raised by the general demurrer, since as we have above construed the amendment it shows on its face non-delivery. Where as in the present case the action depends upon the validity of a deed, the action must fail if there has been no delivery of the deed. Buffington v. Thompson,
Judgment affirmed. All the Justices concur.