52 Ga. App. 741 | Ga. Ct. App. | 1935
When this case was here on demurrer it was held that the plaintiff in error was not entitled to have a year’s support set apart to her out of certain land which had been conveyed to her for life by her husband before his death, with remainder to their children, as appeared from the caveat filed to her application for year’s support. Plowden v. Plowden, 47 Ga. App. 751 (171 S. E. 388). Before the remittitur from this court reached the trial court the applicant for year’s support attacked the deed referred to above on the ground that it had not been delivered to her by the grantor during his lifetime nor delivered to any one for her, and that it was null and void. The case proceeded to trial on the caveat and on this question. The essential facts are these: The deed was dated September 10, 1924, and conveyed a life-estate to the grantor’s wife with remainder to their children. The grantor retained possession and control of the premises during his lifetime. The deed was not recorded during the lifetime of the grantor. The deed contained a recital that it was made subject to a certain debt due the deceased husband of the caveatrix. The grantor died on May 3, 1929, and this deed was found among his papers in a lock box at the bank, attached to his will. A son of the deceased grantor had the deed recorded on May 8, 1929, without being requested to do so by the widow. The deed was signed by the grantor in the presence of two witnesses, one of whom was clerk of the superior court of the county in which the land lies, a proper officer to attest deeds to realty. Some three years after the death of the grantor, his widow in a letter written to the caveatrix stated “I did not know that he [the grantor] gave you collateral on my farm until sometime afterwards, or I would have objected, as the property is mine, and I have deeds in my possession since September 10th, 1924.” The caveatrix was undertaking to get the applicant to pay a debt of her deceased husband at that time. The question involved and controlling in this case is whether or not there was a delivery of the deed to the grantee, the applicant for a year’s support in this case, during the grantor’s lifetime. The following excerpts from
Delivery of a deed conveying real property is essential to its validity, and delivery thereof is only complete when the deed is accepted. Hill v. Hill, 149 Ga. 509 (101 S. E. 121); Stallings v. Newton, 110 Ga. 875 (36 S. E. 227); Code of 1933, § 29-101. A deed that is not delivered does not operate to convey title out of the grantor thereof merely because of its proper execution. Brown v. Story, 94 Ga. 288 (21 S. E. 522). “It is not essential to the validity of a deed that it be actually delivered during the lifetime of the grantor. Constructive delivery will suffice. Wellborn v. Weaver, 17 Ga. 269 (9), 272 (63 Am. D. 235).” Baxter v. Chapman, 147 Ga. 438, 439 (94 S. E. 544). See also Daniel v. Stinson, 179 Ga. 701 (177 S. E. 590), and cit. Where it was shown that a deed was made, and that the grantor said that the land belonged to the grantee, but it was proved that the deed was never recorded during the lifetime of the grantor, and was found by the grantee, among the papers of the grantor after his death, there was no sufficient evidence of delivery, and a verdict finding in favor of the delivery of the deed was without evidence to support it. Maddox v. Gray, 75 Ga. 452; Martin v. Wall, 141 Ga. 201 (80 S. E. 629). In the latter case the question was directly raised in the motion for rehearing, which was denied, that the Maddox case, supra, whs not controlling therein as the presumption of delivery from proper attestation or execution was sufficient to entitle the case to be submitted to the jury. The 'deed in the Martin case was properly attested before a justice of the peace' and in it the grantor provided that she was to remain in the premises as long as she might live. This deed was found in her trunk after her death and then recorded by the grantee, her son. The grantor had openly asserted before her death that she intended to give the property described in the deed to her son. She had consulted
We are of the opinion that there was no presumption that the deed here involved was delivered to the grantee merely because of its execution before two witnesses, one of whom was an officer authorized to attest deeds, where the deed was never recorded during the grantor’s lifetime, was found among his papers after his death and in a lock box to which no one but himself had access, where the grantor retained possession of the premises and treated them as his own. This case is weaker on its facts in the way of raising a presumption of delivery than the eases referred .to just above.
We are of the opinion that the cases cited and relied on by the defendant in error are not controlling and decisive of the question for determination under the facts of this case. While in Preston v. Ham, 156 Ga. 223, 232 (119 S. E. 658), the court said that proper attestation of a deed “is presumptive proof of the deed’s delivery” citing Ross v. Campbell, 73 Ga. 309 and Mays v. Fletcher, 137 Ga. 27 (72 S. E. 408), for the statement, the court there was dealing with the question whether the plaintiff who, as ordinary, was the attesting official witness of the deed, was estopped from asserting title to the premises in dispute because of his having signed the deed, it being there held that this attesting witness would not be estopped from claiming that the deed was not delivered on account of being properly attested any more than the grantor in such deed would be so estopped. In the Preston case the court quoted from Touchstone (1 Shep. Touch. 57) that “The delivery is either actual, i. e., by doing something and saying nothing, or else verbal, i. e., by saying something and doing nothing, or it may be both; and either of these may make a good delivery and a perfect deed.” The court cited Wellborn v. Weaver, supra, and O'Neal v. Brown, 67 Ga. 707, 712, for the proposition that “A deed may be delivered by acts without words, by words without acts, or by both.” Neither of these principles controls the case at bar. In the Preston ease the court planted its decision on the fact that the grantor had placed
Applying the principles above stated and under the facts of this case, the trial court erred in charging the jury that proper attestation of a deed alone raises a presumption of its delivery. This charge was erroneous, was misleading and confusing to the jury and was harmful error requiring the grant of a new trial. It was erroneous and harmful because it was an incorrect statement of the law, and under the facts of this case, there being no question that the deed was not properly executed, it amounted to a direction of a verdict in favor of the caveatrix.
While it is true that delivery of a deed to a grantee may be effected after the death of the grantor where such deed has been delivered, prior to his death, by the grantor to some third person for delivery to the grantee (see O’Neal v. Brown, 67 Ga. 707, 715; Puett v. Strickland, 144 Ga. 193, 86 S. E. 547; Baxter v. Chap
The plaintiff in error properly and sufficiently assigned error on the excerpts from the charge of the court, hereinbefore set out. As this case is being reversed on account of errors in the charge of the trial court, the sufficiency of the evidence will not be passed upon except to hold that the verdict in favor of the caveatrix was not demanded. Eor the foregoing reasons, the judge erred in overruling the motion for new trial.
Judgment reversed.