15 S.E.2d 426 | Ga. | 1941
Lead Opinion
A conveyance by which the grantor transfers "his bond for title interest" in the land described, together with all of his "right, title, and interest" therein, for the purpose of securing a debt owing by him to the grantee, is one under which the benefit of after-acquired independent title inures to the benefit of the grantee, and the grantor and those holding under him are estopped thereafter to claim such after-acquired title as against such grantee, when the debt so secured remains unpaid. This is true although such conveyance contained no express covenant of warranty.
On March 11, 1930, O'Connell for a consideration of $1650 conveyed the property to Realty Savings Trust Company, and assigned to it the purchase-money notes of Perkins. This conveyance was in its terms stated to be "given subject to an outstanding bond for title on said property, dated September 1, 1926, not yet of record but to be recorded herewith, in favor of Harry W. Perkins, and party of the second part is hereby instructed to make title to said property to said Harry W. Perkins" upon payment of purchase-money installments. On July 7, 1931, Perkins being in default, Realty Savings Trust Company sold the property under power of sale, and became the purchaser at a stated consideration of $750. On August 1, 1931, Realty Savings Trust Company, for a consideration of $5 "and other good and valuable considerations," conveyed the same to Perkins, who on the same day reconveyed it to Realty Savings Trust Company to secure a debt in an amount not stated. All of the foregoing conveyances were duly recorded. On November 4, 1938, Perkins died. He was survived by his widow, the plaintiff in the present case, and other heirs, all of whom since his death conveyed to her whatever interest they had in this property. She is in possession. The last-mentioned security deed to Realty Savings Trust Company was canceled and satisfied on June 6, 1940. Mrs. Kate A. Rhodes also is deceased, and her heirs at law are the defendants in the present suit, which was brought by Mrs. Perkins to enjoin them from selling this property under power of sale in the conveyance from Perkins to Mrs. Rhodes, and to cancel the same as a cloud on plaintiff's title. The plaintiff had also applied for a year's support, but these defendants filed objections to the appraisers' return which set apart this property, and that proceeding is still pending. The defendants in the present case filed an answer denying the plaintiff's right to relief, and by way of cross-action sought as against the property a judgment *333 on the note to Mrs. Rhodes. A stipulation of the foregoing facts was made, and the issues were submitted to the judge without the intervention of a jury. Under this stipulation it was agreed that in selling the property involved under the power contained in the contract of sale the Realty Savings Trust Company was acting within its rights and as purchaser at such sale obtained good title. The judge found in favor of the defendants on their cross-action, awarding to them judgment in rem to be made out of the described property for the amount of Mrs. Rhodes' note and interest, holding that the conveyance by Perkins to Mrs. Rhodes had the legal effect of a security deed, and that when Perkins acquired title from the Realty Savings Trust Company it inured to the benefit of Mrs. Rhodes and her heirs at law. Error is assigned on this decree. 1. If the conveyance from Perkins to Mrs. Rhodes of February 21, 1930, is one under which the grantee would get the benefit of after-acquired independent title by the grantor, we may skip over and not be concerned with the legal effect of the transactions and conveyances by which Realty Trust Savings Company acquired and subsequently conveyed title to Perkins. Under the stipulation, Realty Savings Trust Company finally had good title, conveyed it to him, he reconveyed to Realty Savings Trust Company to secure a debt, and this conveyance was canceled, reinvesting title in Perkins, where it reposed at his death, unless it was qualified by being subject to the conveyance to Mrs. Rhodes.
The rule that after-acquired title to real property will inure to the benefit of a previous grantee is recognized in this State by the Code, § 29-111: "The maker of a deed can not subsequently claim adversely to his deed under a title acquired since the making thereof. He is estopped from denying his right to sell and convey." It has frequently been applied. See Bivins v.Vinzant,
It is insisted in the present case that since in our State under the terms of the Code, § 29-302 "there is no implied warranty" in the sale of land, and since in the conveyance here involved there were no express covenants of warranty, it would not be correct to *335
apply the doctrine. In Thomas v. Hudson,
There is good reason to place the parties to a security deed with which we are now dealing, as respects the present question, on a different basis from that of the usual case of bargain and sale of land. The transaction out of which it arises is wholly different. In applying the doctrine of estoppel of the grantor to claim under after-acquired title as against his grantee in the security deed, such grantee was merely put, by the trial judge in this case, on a parity with the mortgagee in Thomas v.Hudson, supra. Under his contract of sale (or so-called bond for title) he was to obtain "a good and sufficient title." This, according to our decisions, meant a warranty title. Toomey v.Read,
Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents.
Addendum
A rehearing was granted in this case, to determine whether an apparently erroneous statement of fact had caused us to arrive at an erroneous conclusion. The author of the opinion had recited that the last security deed had been canceled, "reinvesting title in Perkins, where it reposed at his death." The motion for rehearing called attention that this conveyance was not canceled until after his death, and made the contention that the cancellation was upon payment of the debt by the widow who not only claimed the property as an heir but also claimed the right to have it set apart as a year's support. It is contended that such right is superior to the right of Mrs. Rhodes or her heirs. We do not review our ruling as to the character of conveyance made by Perkins to Mrs. Rhodes, being satisfied with what was originally stated in reference to it, and nothing being presented in the later briefs to change these views; but we do re-examine the question as to the effect of this latter transaction. Careful re-examination of the record does not in any way disclose that the payment of Perkins' indebtedness to the grantee in the last security deed was made by the widow, albeit such may be the fact, since the date of cancellation of the deed is shown to be on a date after Perkins' death. Viewing the case in reference to Mrs. Perkins' claim to the property as for year's support, we reach the same conclusion as originally announced. Such a claim is of course subordinate to a valid outstanding transfer of title as by a security deed. See Lunsford v.Kersey,
The judgment is adhered to. All the Justices concur.