159 Ga. 600 | Ga. | 1925
Lead Opinion
. On March 25, 1914, H. C. White executed and delivered to the Savannah Guano Company a mortgage on a lot of land in Newton County upon which there was a dwelling-house. Subsequently proceedings to foreclose this mortgage were instituted, and in due course, on the 24th day of May, 1919, a judgment of foreclosure was rendered. A fi. fa. based upon this foreclosure was levied upon the property in question, and Mrs. Florence Christian, a daughter of the mortgagor, interposed a claim. The issue made by the levy and claim came on for trial, and the jury returned a verdict in favor of the claimant. The plaintiff in fi. fa. made a motion for new trial, which was overruled.
The claimant in this case introduced in evidence a deed from II. C. White, which she claimed was executed and delivered to her by the grantor named, dated November 14, 1908, but which ivas not recorded until after the death of the grantor and subsequently to the date of the mortgage in favor of the plaintiff. This deed purports to be for a valuable consideration; but the plaintiff insists that it vras a voluntary deed and without consideration. There was evidence in the case which would have authorized the jury to find in favor of this contention of the plaintiff, and upon the trial plaintiff’s counsel duly requested the court in writing to charge the jury as follows: “A deed made without the considera
There was also evidence in the case which would authorize the jury to find that, although the deed recites a valuable consideration, there was in fact no such consideration paid. The evidence for the claimant tending to show that there' was a consideration made an issue for determination by the jury. Plaintiff submitted in due time a written request to the court to instruct the jury that “Whatever a deed recites as to its consideration, the consideration may be inquired into'and proved by other evidence; and if you find that there was no actual valuable consideration for the deed from II. C. White to his daughter, the claimant, you would find it to be voluntary and void as against the plaintiff, Savannah Guano Company.” This was a proper charge and should have been given, as there was no evidence to show that the plaintiff at the tinie of the execution of the mortgage had actual notice of the existence of the deed from the defendant in fi. fa. to the claimant.
The court charged the jury, in part, as follows: “If you fmd from the evidence, as 1 have heretofore instructed you, that Mrs. Christian, the claimant, had a deed from her father, H. C. White, and had possession of it, having a tenant occupying the premises in controversy at the date of the execution of the mortgage-note by her father to the Guano Company, the plaintiff in fi. fa., in that event you would find for Mrs. Christian, the claimant,
And for similar reasons the court should not have charged the jury: “Should you find from the evidence, as I have heretofore instructed you, that at the time of the execution of plaintiff’s mortgage Mrs. Christian, the claimant, was in possession of the property by her tenant, and that she had a deed from her father, then in that event you should find the property not subject, unless you further find that she is estopped from asserting her title.” This charge
.The other instructions given by the court, which are advanced as grounds for a new trial, are not erroneous for the reasons assigned.
Judgment reversed.
Concurrence Opinion
concurring specially. I concur in the conclusion reached by the court; but I can not agree that any certain named set of circumstances may, as a matter of law, estop one who silently stands by and hears statements made by entire strangers, as to the title to her property, from thereafter asserting her rights. The rule dealt with in this case is not the same as applies to purchasers and those standing by at judicial sales, for obvious reasons.