127 Ga. 256 | Ga. | 1906
When this case was before this court at the October term, 1903, it was ruled that where a vendor had made a deed to land in pursuance of his bond for titles, and had delivered the same to his grantee, the subsequent destruction of the deed by the consent of the grantee and grantor did not have the effect of revesting the legal title in the vendor, so as to enable him to convey the premises to a third person. See 119 Ga. 256. If there was a delivery of the deed from Higgins to J. M. Scarborough, the legal title would pass to his trustee in bankruptcy upon his being adjudged a bankrupt, and the purchaser at the trustee’s sale, which was had under •an order of court, would acquire this legal title. And if the purchaser had no notice that the land had been paid for with another’s money, the title he acquired at the trustee’s sale would prevail over any secret equity which a third person might subsequently assert .against the bankrupt. The mere fact that property is purchased
On the last trial the court refused to allow J. M. Scarborough, to testify that "at the time the deed was made from W. E. Higgins-to J. M. Scarborough, [he] instructed that it be made to J. H.. Scarborough, but by mistake it was made to J. M. Scarborough;, but in a very few days, as soon as he noticed the mistake, he returned the deed with the request that it be made to J. H. Scarborough, and that it was so made; and that for more than three months J. M. Scarborough remained in possession of the premises-as the tenant of J. H. Scarborough and paid him rent. When he went into bankruptcy, L. E. Minchew, trustee in bankruptcy, took possession of the premises.” This testimony was relevant and should have been allowed to go to the jury. It appears that the-witness had previously testified that he had entrusted one Wade-with a part of the purchase-money paid to Higgins, but had forgotten to tell Wade to have the deed made to John II. Scarborough;, and as soon as he saw one Harvard, he procured him to write the vendor that the deed should have been made to John H. Scarborough, and that he (the witness) had never accepted the deed made to him. The vendor, Higgins, testified that he sold the land to J. If. Scarborough and executed to him a bond for titles; that Wade paid the balance of the purchase-money and directed a deed to be made to J. M. Scarborough; that witness executed the .deed in accordance with his bond and the instructions from Wade, and delivered the deed to Wade, but that Harvard returned the deed through the mails, accompanied by a letter directing him to change the, deed from J. M. to John H. Scarborough, and the writer would explain the reasons for this request the first time he saw the witness. Wade testified that J. M. Scarborough gave him a part of the purchase-money, and he supplied the balance, and, at the request of J. M. Scarborough, paid the money to Higgins; that J. M. Scarborough told witness to have the deed made, but that
Possibly the court was of the opinion that as J. M. Scarborough had just testified that he had -forgotten to give instructions to his agent, Wade, to have the deed made to J: H. Scarborough, the witness should not be permitted to contradict himself by testifying that he had given instructions that the deed be made to J. H. Scarborough. That a witness may have testified while on. the stand to a given state of facts contrary to what he afterwards proposes to swear affords no reason for excluding his proffered testimony. Walker v. Walker, 14 Ga. 242(7); Pulliam v. Cantrell, 77 Ga. 563. The testimony excluded was most material to the plaintiff’s case, its purpose being to establish the non-delivery of the deed to J. M. Scarborough, and thereby defeat the defendant’s claim of title. Delivery is essential to the validity of a deed; and in order to constitute complete delivery, there must be acceptance by the grantee ■or some one authorized to- represent him. Beardsley v. Hilson, 94 Ga. 50; Stallings v. Newton, 110 Ga. 875. The crucial point in this case was whether or not there had been a delivery of the deed from Higgins to J. M. Scarborough. If the truth be that J. M. Scarborough, without any previous understanding with his vendor, directed Wade, as his authorized agent, to pay the balance of the purchase-money to Higgins and get a deed from him, but forgot to tell his agent of 'his secret intention to have the deed made to John H. Scarborough; and if Wade paid the money to Higgins and directed him to make a deed in accordance with his bond for titles, and Higgins executed such a deed and delivered it to Wade, who accepted it in behalf of his principal, this would constitute a complete and final delivery of the deed to J. M. Scarborough; and under these circumstances it would be immaterial whether J. M. Scarborough did or did not accept the deed when it was handed him by his agent, or did or did not know who was therein named as the grantee. The court should have let in all the evidence offered which went to show under what circumstances the deed to J. M. Scarborough was executed and turned over to Wade for transmission to his principal. If J. M. Scarborough had previously arranged with Higgins to have the deed made to John H.' Scarborough, but by mistake Higgins executed the deed to J. M. instead of John.
Judgment reversed.