128 Ga. 804 | Ga. | 1907
(After stating the facts.) The facts in this case are undisputed, and counsel agree that the case is controlled by a single question of law. The question upon which the case turns is, whether in a competition between a deed executed by the owner of land and a deed to the same land executed,, after his death, by those claiming title under a general devise of the whole of his estate, the older deed is defeated, when it appears that it was not recorded until after the younger deed was executed and duly recorded, and that this latter deed was taken without notice of the existence of the other. This is purely a question of statutory construction, dependent for its solution upon the meaning to be given our statutes in reference to the recording of deeds. For it is perfectly clear that, without the assistance of a statute, one who purchases land from another who has no title can acquire no title to the land by such purchase. The remaindermen under the will of Ilerschel V. Johnson had no title to the lands in controversy to convey to the Georgia Guarantors Company, as such lands were no part of his estate at the time of his death, he having parted with the title to the same during his lifetime. As they had no' title to convey, their grantee acquired none by the conveyance, and hence had none to convey to Henderson, the defendant in this case; unless the fact that the Georgia Guarantors Company purchased these land lots from the devisees in remainder of the estate of the deceased former owner, without actual or constructive notice of the existence of his deed to James W. Armstrong, and then had its deed recorded before the Armstrong deed was placed upon record, had the effect of defeating the Armstrong title. Prior to the act of October 1, 1889 (Acts 1889, p. 106), there had been no material change in the law upon the subject under consideration since the passage of the act of December 25, 1837 (Cobb’s Dig. 175). That act provided, that “in all cases where two or more deeds shall hereafter be executed by the same person or persons, conveying the same premises to different persons, the
In neither of the cases just referred to was it necessary, however, to so construe the act in order to make the decision rendered therein. In the case first cited, the ruling was that “A purchaser of land at judicial sale, acting in good faith and without notice] acquires title as against a' prior conveyance by the owner, unrecorded at the time of the making and confirmation of such sale.” This ruling was merely in accordance with the rulings made in Ellis v. Smith, and Tucker v. Harris, supra, which would have controlled the question presented, whether the act of 1889 had ever been passed or not. “For,” as was held by the court in the Ellis ease in reference to the priority of competing deeds to the same property, “the effect of a sale by the law, in this respect, is just the same as if made by the individual. . . All the defend
What the learned judge who delivered the opinion of the court-in Ousley v. Bailey, supra, said in reference to the effect of the act of 1889 upon the previously existing law was unnecessary to-reach the decision there rendered. The same may be said with reference to the statement by another learned judge, now upon the bench, in Equitable Loan and Security Company v. Lewman, supra, with reference to the effect of the act of 1889 upon competition between a recorded deed from an heir or devisee and an unrecorded deed from an ancestor. Iiis remarks.were based upon the ruling-in Holder v. American Investment Company, 94 Ca. C40, which was made after the passage of the act of 1889 and is in apparent conflict with the decision in Webb v. Wilder, supra. The ruling in the Holder ease is contained in the fourth headnote, (wherein it was held that the statute giving priority to a junior recorded deed over a senior unrecorded deed “applies where the senior deed was made by the testatrix and the junior by her devisee.” No opinion was filed in that case, the rulings being embraced in headnotes only. No reference is made in any of the headnotes to the act of 1889, and whether the existence of that act influenced the decision of the court is a matter for conjecture only. The inference that it did must have arisen from the apparent conflict between that case and the earlier one above cited. But, after a careful consideration of the matter, we have been unable to see how that act changed the law with reference to the priority of deeds of bargain and sale to the same land under the recording acts. In Donovan v. Simmons, 96 Ga. 340, 346, in which ease it was held that the registry act of 1889 did not create any new competition between deeds of bargain and sale and the liens of judgments, Judge Hart, who delivered the opinion of the court, speaking of this act in connection with.
As we have said, the ruling in Holder v. American Investment Company, supra, appears to be in conflict with the decision in the earlier case of Webb v. Wilcher; and if so, the older case would prevail. The present case, however, differs from the Holder case in this material respect: there the owner of a half interest in certain land conveyed a small portion of it, and afterwards devised the entire half interest, described in it. It was
■Judgment affirmed.