177 Ga. 216 | Ga. | 1933
By deed dated January 1, 1875, Timothy Carter conveyed described land to James Tillman in trust for the sole and separate use of Rhoda Carter, wife of Timothy Carter, “for and during her natural life and after her death to such children as she may leave living at the time of her death, having been begotten by said Timothy Carter, share and share alike.” Rhoda Carter died during the month of December, 1929'. Lizzie Harper and four others, alleged to be all the children of Rhoda Carter, together with W. T. Burkhalter, brought, to the February term, 1930, of Toombs superior court, an action of ejectment against F. M. Durden, for the recovery of the land and mesne profits. Burkhalter’s interest in the land is based upon a deed from the children of Rhoda Carter, conveying a one-third interest. The court directed a verdict for the plaintiffs for the premises in dispute, and submitted the question of setting off improvements. The jury returned a verdict for $150 rent, and “that the defendant in good f-aith made valuable improvements on the premises in dispute, while holding adverse possession of the land under a claim of right.” The value of the land, without improvements at the time of the trial, was found by the jury to have been $600, and they found the value of improvements made by the defendant to have been $900. Decree was entered, providing that upon payment of $750 by plaintiffs to defendants, within 30 days, title and right of possession should be in them; that upon their failure to make this payment the defendant, upon payment within 30 days of $750 to the plaintiffs, should have the title and right of possession.
Durden introduced in evidence a deed from Rhoda Carter, dated November 7, 1878, purporting to convey the land in dispute to Jas. H. Smith; also a deed from R. N. Adamson, sheriff of Tattnall County, purporting to convey the land in dispute to James H. Smith, and reciting that it was made under an execution levied upon the land “as the property of Dock Bacon.” He also introduced successive conveyances from J. H. Smith down to a quitclaim deed dated April 1, 1909, placing the title in J. C. Banks, who conveyed it by quitclaim dated November 6, 1909, to Durden. The evidence for Durden showed that Banks was in possession of the land at the time of the sale to Durden.
The second ground complains that the verdict is directly contrary to the charge as given: “If you should find that Mr. Durden made permanent valuable improvements and they were not done in good faith, that he had notice, and I charge you that anything that would put a person on inquiry and direct attention is notice of all such things as such inquiry may lead to. Ignorance of a fact due to negligence is equivalent to knowledge. So in this case, if Mr. Durden had notice, knowledge under that rule of an outstanding title, and he proceeded to put valuable improvements upon the premises, then I charge you he would have no right to set them off
The third ground complains of the admission in evidence of the deed from Rhoda Carter to James EL Smith, containing the following : “for and in consideration of fifty dollars in hand paid, and the further consideration that all lawsuits whether civil or criminal, now pending between Tim Carter and Jas. H. Smith, and Rhoda Carter and Jas. EL Smith, or Daniel Bird and Tim Carter, all of said county, shall be now settled and forever stopped, has granted, bargained, sold, and conveyed unto the said Jas. H. Smith,” over objection that the consideration expressed in the deed made it void, and no title passed.
The fourth ground complains of the admission of a deed made by R. N. Adamson, sheriff, to James H. Smith, conveying the premises in dispute, which states that the execution upon which it was based was “issued from the justice’s court 43rd dist. G. M., of Tattnall County in favor of J. EL Smith against Linton and Dock Bacon, which the sheriff levied on the 30th day of Aug., 1889, on fifty acres of land as the property of Dock Bacon,” over objection that the deed was not accompanied by the execution, and it did not appear that Dock Bacon ever had any title to the land; and if he did, it was junior to the title of the plaintiffs.
The first special ground of the motion complains that the court gave in charge to the jury the substance of the provisions of the Civil Code (1910), § 5587, which is a codification of the act of 1897 (Ga. Laws 1897, p. 79), as follows: “Now then, even though a party bringing a suit in ejectment, the plaintiffs may show an outstanding paramount legal title to the premises, and therefore entitled to recover, yet the defendant in such a suit may set up that in good faith that he made valuable improvements upon the prem
It is insisted that the evidence of the defendant Durden itself concludes the question adversely to him. Counsel for the plaintiffs specifically point out the following evidence of Durden, as a basis for that contention: “As to whether or not the colored woman that was in here — Lizzie Thomas or Lizzie Harper — about the time I was bargaining for this land, or about the time I bought it, as to whether she and her sister went to me and told me that this land belonged to their mother, and when she died the property now in dispute would belong to her children, or words to that affect, —they came through there, and I didn’t know whether it was her or not, after I had done bought and paid for the property, and said that the land belonged to Ehoda Carter’s heirs, or some way or another, and I had better mind what I was doing. And I says that I have done bought it now. But I had not made any improvements on it at that time.” This contention is not sound. The payment of a valuable consideration raises the presumption of good faith. In Williams v. Smith, 128 Ga. 306, 310 (57 S. E. 801), which was a complaint for land and in which there was no question of recovery for permanent improvements, this court said: “ Proof of such payment, in the absence of proof of notice, or of any fact sufficient in law to charge notice, or sufficient to put the purchaser upon inquiry, will raise the presumption that his purchase was without notice, and the onus will be upon the one asserting the equity in the property to prove notice thereof to such purchaser. See, m this connection, Johnston v. Neal, 67 Ga. 528, where it is said: fProof that a purchaser bought for value from the defendant in fi. fa. raises a presumption of good faith; and if it is desired to rebut this presumption by proof of actual notice of the judgment, the onus of
The evidence in this case is undisputed that Durden paid value for the land before the conversation with Lizzie Harper. There is no evidence that the amount paid was not full value. It will be seen, therefore, from the authority just above mentioned, that the presumption is that Durden bought the land in good faith, and the burden was shifted to the plaintiffs in the case. Nothing else appearing, the judge could not have directed any verdict on the question of permanent improvements, but was compelled to submit that issue to the jury in accordance with the terms of the Code, § 5587. ''One may be the possessor of land in good faith, though aware of an opposing claim (where such knowledge would not of itself impute bad faith), if he enters [emphasis ours] in full confidence of his title or the title of one under whom he immediately claims; but his knowledge of an opposing claim of title is a circumstance to be considered by the jury in determining his good faith.” Moate v. Rives, 146 Ga. 425 (91 S. E. 420). In that case the defendant sought to set off the value of permanent improvements against the true owner of the land. The defendant was holding under a lease contract, in which there was a recital that the title of the lessor ''is disputed by other persons (the rightfulness of the claim of title by such person is, however, denied).” It was also provided that if the title failed the lessee should not hold the lessor liable. It was insisted that this provision in the lease contract was such notice as would conclusively negative the bona tides of the lessee in erecting permanent improvements. In the opinion it was said: ''It has been held by this court that the statute declaring that notice suffi
Under the foregoing principles, was the notice given by Lizzie Harper to Dxxrden sufficient to demand a finding against the bona fides of the latter ? She stated to Durden that the land belonged to Rhoda Carter’s children or heirs, and that Durden had better look out. As a matter of fact the plaintiffs, as children of Rhoda Carter, were her heirs, but not as to this property. Rhoda Carter never owned the remainder interest in the land; consequently her heirs could not inherit from her the remainder interest. They took the remainder interest, it is true; but that remainder interest was derived from Timothy Carter, who executed a deed conveying the life-interest to his wife, Rhoda Carter, and the remainder interest to their children. That deed was dated in 1875, and constrxxed by this court in 1902 in accord with what has just been said. Tillman v. Banks, 116 Ga. 250 (42 S. E. 517). When the statement mentioned was made by Lizzie Harper to Durden he held a deed, a quitclaim deed to be exact, from J. O. Banks, purporting to convey the entire interest in the land. Durden introduced a chain of deeds beginning with a deed from Rhoda Carter to James H. Smith, and successive conveyances through several parties into himself. The information given by Lizzie Harper, in view of the chain of title held by Durden, was not sufficient to conclusively prove the lack of bona fides.
It is insisted that under the evidence of Durden he made
The next question presented is whether or not improvements, in a suit like the present, can be set off as against remainder-men. It is urged that the possession of Durden was not adverse to ■ the remaindermen, because the remaindermen had no right of possession until the death of the life-tenant, and that permanent improvements can be set off only where the occupancy is adverse. Prior to the passage of the act of 1897 (Civil Code (1910), § 5587), when permanent improvements could only be set off as against mesne profits, that position might have been tenable. See, in this connection, Dean v. Feely, 69 Ga. 804; Peters v. West, 70 Ga. 343, 346; Austell v. Swann, 74 Ga. 278, 282; Taylor v. Kemp, 86 Ga. 181 (12 S. E. 296). “Where the premises are held bona fide under independent and adverse claims of title, then the party making such improvements is entitled to have their full value allowed him.” Dean v. Feely, supra. “In an action to recover land, the defendant, who has bona fide possession of such land under adverse claim of title, may set off the value of all permanent improvements bona fide placed thereon'.” Hawks v. Smith, 141 Ga. 422 (4) (81 S. E. 200). The act of 1897 has been held constitutional. Mills v. Geer, 111 Ga. 275 (36 S. E. 673, 52 L. R. A. 934); Lay v. Shep
It is insisted by movant that Durden is estopped, because of constructive notice afforded by the record in Tattnall County on August 22, 1878, and in Toombs County on February 21, 1908, of the deed from Timothy Carter to Tillman, trustee for Bhoda Carter. That deed, as stated above, conveyed a life-estate to Bhoda Carter, remainder to her children, the present plaintiffs. Constructive notice is evidence, as a matter of course. In a contest between deeds involving merely title, it would be conclusive. Civil Code (1910), § 4198. However, that code section does not purport to deal with the question of bona fides where an occupant of land is seeking to set off permanent improvements. The burden on this question is on the party asserting notice. English-American Loan
“The terms ‘good faith5 and ‘notice5 are intimately related in jurisprudence, but are not of uniform meaning. The former retains, in some measure, the popular sense of honest belief, but its technical significance depends largely on the doctrine of notice as developed in the progress of the equity system. Considered with reference to and as influenced by ‘notice,5 the term ‘good faith5 bears several legal meanings according to the subject-matter of the litigation in which it is used. As applied to the purchase of a parcel of land, the title to which has passed from the grantor by a prior recorded deed or incumbrance, the constructive notice of the prior conveyance which the record imparts prevents one taking title subsequently from being a purchaser in good faith. Turk v. Funk, 68 Mo. 18, 30 Am. Rep. 771. When the controversy is between the record owner of land and a defeated occupant seeking pay for improvements, such constructive notice of adverse title will not impeach the good faith of the occupant in putting betterments on the land, and this can be done only by proof that he had actual notice of the successful title when the improvements were made. Hill v. Tissier, 15 Mo. App. 899. But in this class of cases the occupant may be found to have had actual notice of the adverse title from
It is a familiar principle of law that a purchaser of land is conclusively charged with notice of recitals contained in a deed which constitutes one of the muniments of his own title. Hancock v. Gumm, 151 Ga. 667 (107 S. E. 872, 16 A. L. R. 1003). “When a conveyance has been properly recorded, the record is constructive notice of its contents, and of all interests, legal and equitable, created by its terms.” 2 Devlin on Real Estate (3d ed.), 1305, § 710. “It is presumed that a purchaser has examined every deed and instrument affecting the title. He is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed.” Id. § 710a; Cheney v. Rodgers, 54 Ga. 168, 170; Rosser v. Cheney, 61 Ga. 468. Por a general discussion of the rule as it prevails in various jurisdictions, reference is made to 31 C. J. 324, 325, 326, §§ 32, 33, 34; 14 R. C. L. 22, § 11. Is such notice conclusive against the claim of bona fides in a proceeding to set off improvements in.-this case where the title of the occupant is bad ? The only deed which contains notice to Durden that his title was not good for the entire interest is the deed from Timothy Carter to Rhoda Carter mentioned above. That deed was recorded, ’ If Dur
Movant complains that the verdict is contrary to the following charge of the court: “I charge you . . that if you should find that Mr. Durden made permanent valuable improvements and they were not done in good faith, that he had notice, and I charge you that anything that would put a person on inquiry and direct attention is notice of all such things as such inquiry may lead to. Ignorance of a fact due to negligence is equivalent to knowledge under that rule of an outstanding title; and [if] he proceeded to put valuable improvements upon the premises, then I charge you he would have no right to set them off at all, and your verdict ought to be for the plaintiffs for the premises and whatever you may find to be the fair rental value of the premises for the year 1930.” In view of what has been ruled above, this ground of the motion is without merit.
It is urged that the deed from Rhoda Carter to Smith, reciting as a consideration “the sum of fifty ($50.00) dollars in hand paid, and the further consideration that all lawsuits whether civil or criminal, now pending between Tim Carter and Jas. H. Smith, Rhoda Carter, and James H. Smith, or Daniel Bird and Tim Carter, . . shall be now settled and forever stopped,” was void on its face, because it appeared that the consideration was in settlement of a criminal prosecution, passed no title, and was inadmissible. This contention is not sound. The quoted recital shows that the grantee paid a money consideration oE $50 for the sixty acres of land. It recited another consideration in addition to the $50; that is, the settlement of litigation whether civil or criminal. The land was sold to the present occupant, Durden, for $600. There is no
The seventh ground of the motion complains that the court illegally admitted in evidence a deed made by R. N. Adamson, sheriff, to James H. Smith, conveying the land in dispute, over objection that the deed was not accompanied by an execution to give the sheriff authority to sell the land and the execution was not accounted for, and it did not appear that Dock Bacon ever had any title to the land; and if he had, it was junior to the title of plaintiff. For the same reasons stated in the next preceding division, the admission of this document in evidence was not error. Calhoun v. Thompson, 171 Ga. 286 (155 S. E. 183).
The verdict is supported by evidence.
. Judgment affirmed.