187 Ga. 94 | Ga. | 1938
Lead Opinion
Every applicant Cor the benefits under the land-registration act (Ga. L. 1917, p. 108; Code, § 60-101 et seq.) must stand on the strength of his own application, and not upon the weakness of his adversary’s title. In proving such title as will entitle him to registration and a decree in his favor, the same rules of law apply as in suits for the recovery of possession of land by ejectment or statutory 'complaint for land:. Thomasson v. Coleman, 176 Ga. 375 (167 S. E. 879); Rock Run Iron Co. v. Miller, 156 Ga. 136, 141 (118 S. E. 670); Smith v. Board of Education, 168 Ga. 755 (2) (149 S. E. 136).
The applicant in her petition claimed the right of registration by virtue both of described deeds and of adverse possession thereunder. However, the evidence before the examiner failed to establish a prescriptive title in her, and she disclaimed any such claim of title, and did not except to the finding that such title had not been shown. Her right to registration, therefore, depends upon title as shown by the deeds under which she claimed.
Both the petitioner and the defendants claimed under a common grantor, who in 1911 executed to a grantee, since deceased, a deed to secure a stated debt of $15,000, due in 1917, which the defendants attacked as void for usury. The title of the common grantor under deeds into him and prescription thereunder was proved and undisputed. Accordingly, the controlling factor in most of the questions raised is the validity of the security deed, under which the applicant as transferee obtained a sheriff’s deed by virtue of its foreclosure, with related questions as to the right of the defendants to attack the security deed and the ad-' missibility of evidence thereon.
Under the law as it existed before the act approved August 18, 1916 (Ga. L. 1916, p. 48; Code, § 57-112), a deed to secure debt, infected with usury, and purporting to convey title to the lender, was void and ineffectual to pass the title. Liles v. Bank of Camden County, 151 Ga. 483 (107 S. E. 490), and cit. The new law, ameliorating this penalty, not being retroactive (Long v. Gresham, 148 Ga. 170 (2), 173, 96 S. E. 211), and the transaction here in question occurring before the new act, the validity of the instrument and the rights of the parties must be determined by the old law and decisions thereunder.
Under the former law, the grantee in a security deed tainted
Under the old usury law, although the defense of usury was a personal one, which no one could plead except the borrower and his privies, where both parties claimed title from the same source (Scott v. Williams, 100 Ga. 540, 544, 28 S. E. 243, 62 Am. St. R. 340; Zellner v. Mobley, 84 Ga. 746, 750, 11 S. E. 402, 20 Am. St. R. 390; Peoples Bank v. Fidelity Loan & Trust Co., 155 Ga. 619 (2, 3), 117 S. E. 747), and the, plaintiff sought to show title in himself by a deed or other writing, the defendant had the right to attack such instrument and show that it was not a title, but was void for usury or other cause; and this he could do without filing a plea to that effect. Jaques v. Stewart, 81 Ga. 81, 83 (6 S. E. 815).
Under the old law, if the debt secured by the deed was reduced to judgment, without any plea of usury by the debtor or with an adverse verdict and judgment upon such plea, the debtor and his creditors, even holding judgments, in the absence of fraud, want of jurisdiction, or other equities, were estopped from attacking the deed for usury. Miller v. Parker, 133 Ga. 187 (1), 189 (65 S. E. 410); Bush v. Bank of Thomasville, 111 Ga. 664 (3), 667 (36 S. E. 900); Owens v. Gibson, 74 Ga. 465. But where both parties claimed under the grantor in the usurious security deed, the fact that the creditor had reduced his debt to judgment, without any successful defense of usury, did not estop or preclude one who claimed under a conveyance from the .debtor, made before the judgment, and who was not a party to the suit in which the judgment was obtained. Ryan v. American Freehold Land Mortgage Co., 96 Ga. 322, 324 (23 S. E. 411).
(a) Under the laws controlling the transaction of the security deed in question, the defendants, claiming under the grantor, were not estopped or precluded from attacking such deed as usurious by the fact that some of the instruments under which they claimed contained agreements to assume or pay debts or claims “justly due” by the original grantor in the security deed, or liens against
(&') Under the preceding rulings, notice being immaterial, the fact that the defendants, claiming under conveyances from the original grantor in the security deed before any judgment against him, had constructive or even actual notice of the alleged invalid deed, would not estop 'or preclude them from attacking it, where the petitioner sought a registration of title thereon.
(c) Nor in such a proceeding would the defendants in possession be estopped or precluded bjr mere lapse of time from attacking the validity of the deed when relied upon by the petitioner for registration.
“Grounds of a motion for new trial based upon the admission of evidence will not be considered by this court unless the grounds show what are- the objections to the evidence, and that these objections were made when the evidence was offered. Nor will the reason or reasons why certain evidence should not have been admitted be considered here, unless such reasons appear to have been urged before the trial judge and at the proper time.” Langston v. State, 153 Ga. 127 (111 S. E. 561); Grace v. McKinney, 112 Ga. 425 (2) (37 S. E. 737); Lamkin v. Clary, 103 Ga. 631 (5), 639 (30 S. E. 596); Harris v. State, 156 Ga. 582 (119 S. E. 519).
(a) “The provision of the [Code, § 38-1603, par. 1], to the effect that the opposite party in a suit instituted or defended by an indorsee, assignee, or transferee of a deceased person shall not be admitted to testify in his own favor against the deceased person as to transactions or commuhications with such person, refers only to the immediate indorsee, assignee, or transferee of the deceased person.” Purvis v. Raste, 144 Ga. 16 (3) (85 S. E. 1012); Castleberry v. Parrish, 135 Ga. 527 (5) (69 S. E. 817). It has therefore been held that in a suit to recover land, brought by one
(b) By the express language of the Code, § 38-1603, par. 5, the incompetency of an '“agent or attorney at law of the surviving . . party” to testify as to transactions with a deceased person exists only where the witness was such agent or attorney “at the time of the transaction testified about.” In order for the inhibition of § 38-1603, par. 4, to exclude testimony as to such transactions by a '“person interested in the result of the suit,” the interest must not be mere personal bias or based on near relationship, even such as husband and wife, but must be founded upon or reducible to pecuniary gain. Blount v. Beall, 95 Ga. 182 (2), 188 (22 S. E. 52); Jackson v. Gallagher, 128 Ga. 321, 324 (57 S. E. 750), and cit.; Lawson v. Prosser, 146 Ga. 421, 423 (91 S. E. 469); Belcher v. Craine, 135 Ga. 73 (4) (68 S. E. 839); Dean v. Dean, 13 Ga. App. 798 (80 S. E. 25); Morris v. Shaw, 44 Ga. App. 222 (5) (160 S. E. 820). Nothing was held to 'the contrary in Dorminy v. Russell, 182 Ga. 635 (186 S. E. 679), where not only was it admitted in judicio that the husband, who sought to testify for his wife, was her general agent, but it appeared that he himself had a pecuniary interest in the result of the suit.
(c) Under the rulings made in this division of the opinion, the testimony of the original grantor in the security deed, under whom all the parties in this case claimed, was properly admitted, and should have been considered, as it was, by the examiner, who merely held it to be '“'insufficient evidence to void the security deed.” Not only were there no objections'to the admission of this evidence on grounds urged in this court, the objections before the examiner being that the witness could not “go behind” the judgment and execution rendered against him on the security deed, and that the evidence was “too vague and indefinite” as to amounts and circumstances of payment to “be of any probative value to sustain the allegation of usury, even if [the present defendants] were either necessary or proper parties to the suit on the note
Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which is given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a jury or other trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth. In a ease where the direct evidence is not all one way, or where there are proved facts and' circumstances which could be taken as inconsistent with the direct positive testimony, the jury may always consider the relationship and the feeling of the witnesses toward the parties, as well as all the facts and circumstances of the case, including the witnesses’ manner of testifying, their intelligence and number. Georgia Railroad & Banking Co. v. Wall, 80 Ga. 202, 204 (7 S. E. 639); Central of Ga. Ry. Co. v. Wood, 105 Ga. 499 (30 S. E. 933); S. C. & Ga. R. Co. v. Powell, 108 Ga. 437 (33 S. E. 994); Ga. So. & Fla. Ry. Co. v. Sanders, 111 Ga. 128, 129 (36 S. E. 458); Western & Atlantic R. Co. v. Beason, 112 Ga. 553, 556 (37 S. E. 863); Patton v. State, 117 Ga. 230 (5) (43 S. E. 533); Frazier v. Ga. R. &c. Co., 108 Ga. 807 (33 S. E. 996); Ga. So. & Fla. Ry. Co. v. Thompson, 111 Ga. 731 (36 S. E. 945); Taggart v. Savannah Gas Co., 179 Ga. 181 (175 S. E. 491); Jones v. State, 48 Ga. 163, 164; Moore v. Dutson, 79 Ga. 456 (4 S. E. 169); Central Railroad &c. Co. v. Maltsby, 90 Ga. 630 (16 S. E. 953); Armstrong v. Ballew, 118 Ga. 168 (2) (44 S. E. 996); Gibbs v. State, 8 Ga. App. 107, 108 (68 S. E. 742); Neill v. Hill, 32 Ga. App. 381 (2-a) (123 S. E. 30); Jones v. Teasley, 25 Ga. App. 784, 788 (105 S. E. 46); Penn. R. Co. v. Chamberlain, 288
On the essential issue as to whether the security deed was usurious, the grantor testified: “At the time this $15,000 was obtained from Mr. B. H. Tanner [the grantee in the deed], as a part and parcel of the transaction he required me to pay for the $15,000, not only the $15,000 mentioned in the loan deed, and 8 per cent.interest thereon, but an additional $1000 and interest thereon at 8 per cent.; in other words, required me to pay $16,000 and interest on $16,000 at 8 per cent, for $15,000 of money actually advanced. This was at the time and in connection with the $15,000 borrowed on the loan deed.” On cross-examination, he testified: “I didn’t pay the full amount of $1000. Later on there was an amount,.less possibly $500, accepted in settlement of it. At that time it was settled with a great many other obligations.” This testimony was uncontradicted.
(a) As was brought out on cross-examination, an amount in excess of lawful interest was not only charged but actually paid. Furthermore, since usury consists not only in “the reserving and taking” but in the “contracting to reserve and take” more than the'legal rate (Code, § 57-102; and see also Code of 1910, § 3427), the fact that the agreed excess was compromised and settled for a-less amount would not free the transaction from usury. Martin v. Johnson, 84 Ga. 481, 486 (10 S. E. 1092, 8 L. R. A. 170).
The land-registration act, Code, § 60-207, requires the applicant to set forth in the petition “when, how, and from yhom [the land] was acquired, a description of the title by which he claims the land, and an abstract of title.” With reference to the registration of title to three of the tracts under several deeds thereto from a city marshal and the city to the petitioner, based on executions and assessments by the city authorities for paving, curbing, and improving the street adjacent to part of the property, not only did the petition and abstract fail to include such deeds or claim registration thereunder, but several were executed during the pendency of. the suit. For these reasons, the findings of the examiner and the decrees of the court could not properly be based on such instruments.
(a) Where a city marshal has levied an execution issued by the city authorities, and has executed a deed to the purchaser at the sale, “in the absence of statutory aid, the recitals in [such a] tax deed that the preliminaries of a valid sale . . were observed are not evidence of the facts recited.” Johnson v. Phillips, 89 Ga. 286 (2), 288 (15 S. E. 368). This principle, now codified as § 92-4407, would apply equally to recitals in a marshal’s deed, made under an assessment, execution, and sale for paving, curbing, or other city improvements. Accordingly, even if the petitioner could claim registration under unpleaded deeds from a city marshal and the city, and under deeds executed during the pendency of the case, she was in no event entitled to a finding and decree based thereon, where the only evidence as to the validity of the executions
(6) The land-registration act (Code, § 60-202), expressly provides that “for the purpose of this title no Lax deed shall be treated as a muniment of title, or admitted in evidence, or considered by the examiner or the court as a conveyance of title, color of title, or claim of title, unless the same shall have been executed, delivered, and recorded more than seven years before the filing of the petition for registration of title of the land described in such dteed.” In Georgia Railroad &c. Co. v. Decatur, 137 Ga. 537, 540 (73 S. E. 830, 40 L. R. A. (N. S.) 935), it was said: “Though'assessments for local improvements are not taxes within the meaning of the requirement of the constitution that taxes must be ad valorem and uniform, nevertheless assessments for local improvements, such as street paving . . are an exercise of the taxing power.” See 44 C. J. 481. Again, in City of Brunswick v. Gordon Realty Co., 163 Ga. 636, 641 (136 S. E. 898), this court said: “By the great weight of authority a local assessment, levied in return for the benefits conferred upon the property assessed by the improvement for which the assessment is levied, is a kind of tax.” “The city might, if it sees proper, raise money by direct taxation for the specific purpose of making street improvements; and the fact that by the method of assessment' . . it imposes the burden upon the property owner whose property would be benefited by the improvement does not divest the proceeding of the city, in issuing and levying the execution, of its character as an exercise of the taxing power.” See, as to such assessments and procedure, Code,' §§ 92-4201, 92-4401, 92-4402. Although § 67-1701 (1), establishing liens, refers to '“liens in favor of . . municipal corporations for taxes,” and § 92-5708, fixing priorities, refers “to liens for taxes . . due . . any municipal corporation,” and “taxes due to municipal corporations of the State,” without any express reference to liens for city improvements of property, it was held in the Gordon Reatty Co. case, supra, that '“the lien upon the property in question . . [has] the rank of a tax lien.” The procedure in sales under executions for city improvements and the time for redemption therefrom also have been held to be controlled by the statutory rules applicable to ordinary city tax fi. fas. Hopkins
“In this State a bond for title is color of title, and the holder thereof may, through seven years adverse possession, acquire title against all persons, except his obligor, and the heirs, executors, and administrators of the latter.” Baxter v. Phillips, 150 Ga. 498 (104 S. E. 196). The petitioner failing to show and disclaiming at the hearing before the examiner any prescriptive title, and the security deed on which her claim of title through the grantor therein essentially rested being void und'er the evidence, she was not entitled to prevail thereon against the defendant wife of such grantor, who claimed more than seven years adverse possession under color of title to three of the tracts sought to be registered, and an undivided half interest in the tract numbered 4, the remaining half interest being claimed' by the defendant heirs of the deceased brother of the original grantor. The evidence showed that the security deed was executed in 1911 and matured in 1917; that the grantor therein executed a deed to a half interest in tract 4 to his brother in 1913-, and a deed to the remaining properties in question to another person in 1915; that this purchaser executed a bond for title to the defendant wife in 1920; that the purchaser from the original grantor went into possession under his deed, and the defendant wife into possession under her bond for title, and! possession under these instruments extended for more than seven years; that the petitioner obtained a judgment on her security deed and debt and a sheriff’s deed thereunder in 1923; and that the petition was filed in 1928. The defend'ant wife, thus establishing under the evidence a good prescriptive title
(а) While under the old usury law it was the rule that “before a borrower who has executed . . a [security] deed [void for usury could] have affirmative equitable relief” therefrom, such as cancellation or injunction, he '“must pay or tender to [the] grantee the principal and lawful interest due to him” (Liles v. Bank of Camden County, 151 Ga. 483 (supra), and cit.), assuming without deciding that such a rule would be applicable to subsequent purchasers from the grantor-borrower, this would not prevent the defendants in this case from having their titles, acquired by prescription under their own color of title, registered in their cross-actions, since as to the security deed their defenses were only negative, and their affirmative prayers related to their claims of title, independently of such deed.
(б) Under the evidence, the security deed being void for usury, and having been in default since January 1, 1917, without exercise by the grantee of the right of entry and possession arising after such default, and the defendants’ claim of adverse possession under their own color of title being in no wise permissive under the grantee in the security deed (see Sweat v. Arline, 186 Ga. 460, 197 S. E. 893, dealing with the law before the act of 1937 (Ga. L. 1937, p. 755), and citing and distinguishing Tony v. Ledford, 184 Ga. 856, 858, 193 S. E. 761; Chandler v. Douglas, 178 Ga. 11, 172 S. E. 54, and other cases, as to the right of subsequent purchasers from a grantor in a valid security deed to acquire prescriptive title against the grantee therein, before default and consequent right of entry and possession by the grantee), it was error for the examiner
(c) The land-registration act provides that suit “shall be begun by a petition to the court by the person or persons or corporation claiming, singly or collectively, to own . . an estate in fee-simple in any land, whether subject to . . lesser estate, or not” (Code, § 60-203); and that any person may file “objections to the granting of the relief prayed for in the petition . . by filing in court an answer . . and the grounds of his objection; or he may file a cross-action praying that the title to the land, or some interest therein, be decreed to be in him, and registered accordingly.” Code, § 60-206. Under these express provisions, all of the parties at interest being before the court, the fact that, as to the tract numbered 4, one defendant sought registration of an undivided half interest, and the other defendants registration of the other half interest, would not defeat the right of the defendants to registration of the titles to these respective interests.
Under the preceding holdings, the oral and documentary evidence demanded findings that the original security deed was usurious and void; that the petitioner.and the intervenors claiming under her were not entitled to register their claims of title; and that the defendants were entitled to registration of their respective titles, as stated. Accordingly, while the court properly overruled the general demurrers of the petitioner to the answers of the defendants and amendments thereto, it was error to overrule the exceptions of the defendants to the report of the examiner, and error to decree in favor of the petitioner and the intervenors.
Judgment reversed On the mam hill of exceptions; and affirmed on the cross-hill.
Rehearing
ON MOTION FOR. REHEARING.
1. The defendants in error, plaintiffs in the trial court and the intervenors claiming under her, contend in their motion for rehearing that this court “failed to take into consideration circumstances cinconsistent with the testimony/” of the witness as to the usury, “which the special [examiner] in hearing and examining the testimony produced at the hearing considered
(a) It is first urged, that, although the witness Lankford testified that he had no authority from the defendant to take-from the plaintiff a certain option contract executed by the plaintiff, in 1923, by which-the plaintiff agreed to resell the land to the defendant after foreclosure of the security deed and a judgment against
(í>) Much of the motion for rehearing is devoted'to argument on alleged facts and general legal principles relating to agency. However, there was no testimony as to any pecuniary interest of the witness at the time of the trial, or as to any general agency of the witness for any defendant, or as to any sort of agency or attorneyship of the witness at the time of the original security-deed transaction with the grantee who afterward died, so as to affect the qualification of the witness. The contention that at various subsequent times the witness collected rents and attended to other matters for the defendants, while showing special agency at’ such times, showed no general agency. In any event, these alleged facts and circumstances as to special agency failed to contradict the testimony of the witness as to usury or his other testimony, since the testimony relied on, as quoted in the motion, was derived from the evidence of the witness himself, and shows nothing inconsistent therewith.
(c) Finally, as ground for the rejection of the testimony of usury, movants say that the witness “testified to facts which, as the court points out in paragraph 10 of the opinion, would amount to usury if true, and the failure to pay the amount claimed to have been agreed to have been paid as usury would not relieve the transaction of the taint, [and] the admission that he did not pay the amount that he agreed to pay on this particular item shows further that this was his practice throughout all of these transactions;” and that he allowed the judgment to be taken against him in 1923 in the foreclosure suit without making the defense of usury. As to these matters, the record throws strong light both on the acts of the witness and on the question as to whether a finding of usury was demanded, not only by the testimony of the witness, but by facts in connection therewith. After the witness had testified, as quoted in the original opinion, that he agreed with the lender as grantee in the security deed to pay him $1000 in addition to 8 per cent, interest bn the $15,000 actually advanced, without refer
In view of the earnest and able contentions of the movants that there were inconsistent and conflicting circumstances which authorized the examiner to reject the testimony of the witness as to usury, and which caused the examiner to discredit such testimony,
Nor could this court affirm the judgment approving the specific findings of the examiner on the theory that, even though the examiner did actually consider the testimony of the witness and merely held it legally insufficient to show usury, the examiner could have disbelieved and rejected the testimony and could have so found. While recognition is taken of the long-settled rules both that a judgment approving the verdict of a jury or findings of any other trier of the facts must on the general grounds be affirmed if there be any evidence to support the verdict or finding, and that if a decision is legally correct, the mere fact that the judge based it on a wrong ground or reason will not ordinarily work a reversal, we know of no extension of these principles that would require an affirmance of the present judgment on the theory that the evidence would have authorized the examiner to make a different finding, which, if it had been made, would have authorized other findings which he actually mad'e. So to hold would require a new finding by this court, and in effect make it an original trier of the facts, and not a court of review on the rulings actually made. As the general rule is stated in 3 Am. Jur. 462: “An appellate court will not make findings, even though the evidence clearly warrants them; nor will it add to a special finding a fact, unless that which is added results as a necessary conclusion from the facts found.” See, in addition to numerous cases there cited: White v. Beal &c. Grocer Co. (Ark.), 45 S. W. 1060 (9), 1062; Smith v. Los Angeles &c. Asso., 78 Cal. 289 (20 Pac. 677, 678, 12 Am. St. R. 53). “Relatively to the revising powers of this court, the jury [or other triers of the facts] are the exclusive judges of the credibility of witnesses.” Rome R. Co. v. Barnett, 94 Ga. 446 (5) (20 S. E. 355); Plummer v. State, 1 Ga. App. 507 (57 S. E. 969); King v. Jackson, 9 Ga. App. 413 (71 S. E. 491); Booker v. State,
2. An additional ground of the motion is that the court overlooked the fact that in 1915 the grantor in the original security deed of 1911 executed a deed to the father of the defendant in consideration of payment by that grantee of certain debts of the grantor; that in 1920 that grantee executed to the defendant wife the bond for title referred to in the original opinion, and obligating her to pay debts of her husband; that this bond was not good color of title, because the contract of the wife to pay debts of her husband was “inhibited by law;” that it did not have the “sanction of a superior court;” that her possession under the bond was merely permissive, and before a prescriptive title could have ripened under it the obligor father in 1925 executed a deed to the husband, who did not execute a quitclaim deed to the wife until 1937 during the pendency of the suit; that this deed could not be tacked on to the bond for title, although it recited that it was made to correct a mistake by all of the parties in not executing deed to the wife in conformity to the 1920 bond for title, and the testimony as to such an actual mistake was undisputed; and that “even
Since the remaining contentions of the motion, as to the right of the defendants to raise the question of usury and as to questions of prescription, have already been exhaustively considered in the original opinion, it is unnecessary to deal further therewith.
Rehearing denied.