169 Ga. 734 | Ga. | 1930
Robert D. Moss and PI. Baker Moss are brothers, sons of Fountain G-. Moss, from -whom they derived by inheritance lands in Banks County in this State. By inheritance and purchase they also acquired additional land upon the death of their mother. Bobert P. Moss was several years older than H. Baker
1. Besides the usual general grounds, error is assigned in the motion for a new trial, because the court charged the jury as follows : “Now, gentlemen, the first question of law in this ease is, was the deed made on March 29, 1909, was that executed and made and delivered P Now, in order for a deed to be valid it must have been delivered to the man who it was made to, and until it is delivered to the party to whom the deed is made it is not a deed. In other words, the statute Rays, to constitute a deed, a deed to land in this State 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 consideration. The consideration of a deed may be inquired into when the principles of justice require it. One of the elements necessary to constitute the validity of a deed is delivery of the deed, and until the deed is delivered it is not effective against the maker. Now, gentlemen, you take up that issue first, was the deed delivered? If it was executed and intentionally delivered to II. Baker Moss, and that was the intent at the time, why then that deed is good.” It is alleged that the statement that “in order for a deed to be valid it must have been delivered to the man who it was made to, and until it is delivered to the party to whom the deed is made it is not a deed,” and the words, “you take up that issue first, was the deed delivered? If it was executed and intentionally delivered to II. Baker Moss, and that was the intent at the time, why then that deed is good,” were prejudicial to the movant, for the reason that it is “contended in this case that the deed in question was delivered to the Baldwin State Bank in a sealed envelope addressed to Bobert D. Moss and H. Baker Moss, which in law amounted to a delivery; the court falling to charge the law of constructive delivery or the law of delivery to another for the grantee.” We find no error in the instruction. The judge charged as to the constituents of a deed, in the very Code definition which requires that a deed must be “delivered to the purchaser or some one for him.” Consequently there was nothing prejudicial in his telling the jury that one of the elements necessary to constitute the validity of the deed is delivery of the deed, and that until it is delivered the deed is not effective
2. The assignment of error set up in the second special ground of the motion for a new trial is directed to the following excerpt from the charge of the court: “Now a deed in escrow is where one party makes a deed and turns it over to another party to be delivered upon certain conditions. Now the court charges you, as a matter of law, if this deed was made and delivered to the bank upon conditions between H. Baker Moss and Robert D. Moss, whether or not the bank understood that or not, if that was the agreement between the parties and it was to stay there, the fact that either one of them took out the deed and had it entered on the record in the clerk’s office would not give it validity any more than before; but if it was given them and it was a straight deed of gift to EL Baker Moss, and there was no agreement that there was to be a joint deed in the consideration, if you find that to be the case, you would be authorized to find in favor of the defendant EE. Baker Moss, provided you find there was a delivery.” This instruction is assigned as error, “because the evidence did not authorize a charge on the law of escrow, there being no evidence of escrow;” because the words in said charge were prejudicial and harmful to defendant, and not a correct charge of the law of either escrow or delivery; and because, “the depositary being the agent of the grantor, the grantor is bound by his act, unless such act was contrary to the instructions of the said grantor, and it not appearing in the evidence that the depositary had any instructions, beyond the delivery of an envelope addressed 'Robert D. Moss and EE. Baker Moss,’ and there being no proof or allegation of fraud on the part of the grantee in obtaining possession of said deed.” '
In the form in which this exception is presented the gist of the alleged error is that the instruction is not adjusted to the evidence, and was without evidence to authorize it. As to the lack of allegation of fraud on the part of the grantee in obtaining possession of the deed, the petition plainly alleged that the conduct of Baker Moss in the entire transaction, including the procurement of the deed for the purpose of record, was a fraud. As to the proof not authorizing the instruction, the plaintiff, Robert D. Moss, swore
3. The third ground alleges that “The court erred in charging the law of escrow, 'there being neither evidence nor pleadings that demanded a charge on the subject of escrow. Therefore the same was prejudicial, harmful, and hurtful to the cause of the movant.” The petition, which was not demurred to, alleged that the petitioner deposited the deed with the Baldwin State Bank, to be held by it until the survivor of the two brothers should call for it after the death of the other. From what we have said as to the evidence, it is plain that this ground is without merit.
4. In the fourth ground it is alleged that the court erred in failing to charge the jury the law of constructive delivery of a
5. In the fifth ground complaint is made that the “court erred in failing to charge the jury the law of the presumption of the deed having been delivered, and the evidence and pleading disclosing that the defendant was in possession of the deed and that the same had been recorded in the office of the clerk of the superior court for Banks County, Georgia, the presumption under the law
6. Exception is taken to the following excerpt from the charge of the court: “Now, gentlemen, you take this case under the rules, and you come to the conclusion, first, whether or not there was a delivery of the deed, or whether or not it was to be a joint deed. And if the deed was delivered, and it was the intention on the part of Eobert D. Moss to deliver the deed over to H. Baker Moss, you find in favor of H. Baker Moss. On the other hand, if you find there was no intention of delivery, but it was taken from the bank vault contrary to the agreement, then you find in favor of the plaintiff.” It is alleged that said charge was “prejudicial, unwarranted under the evidence, and harmful to the defendant.” We are of the opinion that this instruction, in connection with the preceding portions of the charge, very clearly presented to the jury the controlling issue in the case. It was based upon the evidence in behalf of the respective parties, and was such a statement of the concrete facts, without prejudice to either party, as would enable the jury to clearly understand the paramount issue in the case.
7. The verdict was authorized by the evidence. A careful reading of the record discloses that the jury would have been authorized to find a verdict in favor of the defendant, instead of one in favor of the plaintiff. Various facts appearing in the record are adverted to by learned counsel for the plaintiff in error, and urged as reasons why a-new trial should have been granted. Much stress is laid upon the fact that there is testimony of “worthy” witnesses as to admissions made by the petitioner to the effect that he had given his lands to his brother years before his departure to the west, and other similar circumstances. These matters might have influenced the jury to find a verdict different from that returned. But it is beyond the province of this court to set aside the finding of a jury upon issues of fact, where, there is absolute eonilict in the evidence in behalf of each. They are addressed to and may be considered by the trial judge in his review upon the hearing of the motion for a new trial; but in a case in which a verdict might have been rendered by the jury in favor of either party, when the
Judgment affirmed.