Opinion
17490.
SUBMITTED JUNE 11, 1951.
DECIDED JULY 9, 1951.
Cancellation. Before Judge Nichols. Floyd Superior Court. April 6, 1951.
Henry J. Fullbright Jr., and Karl C. Duffey Jr., for plaintiffs in error.
Davis Davis, contra.
A petition for the cancellation of a deed, alleging that a mother, the owner of described realty, executed a voluntary deed to her children giving them a remainder interest, when in fact she intended to execute a will, and alleging that she has retained possession of the deed and continued in possession of the land since its execution, is sufficient to set forth a cause of action.
No. 17490. SUBMITTED JUNE 11, 1951 — DECIDED JULY 9, 1951.
Mrs. Winnie Belle Johnson filed in Floyd Superior Court, against Thomas E. Kirby and others, a petition which sought cancellation of a duly recorded instrument that was executed by her on June 22, 1934, purporting, in consideration of love and affection, to convey to her children, who are the defendants, a described tract of land containing 160 acres. It was stated in the instrument that the petitioner reserved a life estate, it having been the intention to convey the realty to her children, but to reserve an estate in the realty so long as she lived during which time she should retain the management, control, and possession of same. The petitioner has been in possession of the realty since the execution of the instrument. She had no knowledge of the requisites of a will or of a deed reserving a life estate and conveying a remainder over. She understood that she was executing an instrument so her children would be given the realty at her death, but that she would remain the owner so long as she lived and have full power and control over it, and enjoy the benefits from it as her own property. While the realty was conveyed subject to two described loan deeds for $1200 and $600 respectively, yet, the petitioner paid off the debts and sold timber off the realty in good faith believing it to be her own. The defendants had the same understanding of the status of the realty until shortly before institution of the present proceeding, when the petitioner was informed that the instrument was a deed giving to the defendants a present remainder interest and reserving to her a life estate. Such character of the instrument was in no wise petitioner's intention, but it was her intention that the defendants should have the realty at her death. The petitioner has possession of such instrument of writing and has retained its possession since its execution.
The defendants demurred on the grounds: The petition does not set out any cause of action at law or at equity against the defendants; the petition does not set forth any facts to support a prayer for cancellation, there being no allegations of fraud, or that the execution of the instrument was through a mutual mistake of the parties, and there being no allegations of fact that would excuse the petitioner from knowing or learning the legal effect of the instrument; and the petition shows on its face that the action has been barred by long delay.
The trial court overruled the demurrer and the defendants excepted.
Delivery of a deed conveying realty is essential to its validity. Code, § 29-101; Smith v. Smith, 202 Ga. 759 (1), ( 44 S.E.2d 486). Taking the allegations of the present petition to be true, as must be done in considering the general demurrer, the averment that the "petitioner has possession of such instrument of writing and has retained its possession since its execution" constitutes an allegation that the instrument had not been delivered.
The prima facie presumption of delivery of a deed, arising from the fact of its record, may be rebutted upon proof that the grantor, after its execution, took possession of the instrument, and thereafter retained it. Stinson v. Daniel, 193 Ga. 844 (2), 849, ( 20 S.E.2d 257), and citations.
The case of Carter v. Walden, 136 Ga. 700 (3), ( 71 S.E. 1047), involved allegations of a petition, where a person intended to execute a will, similar to those in the present case. It was there held that the petition was not subject to general demurrer.
The petitioner was not guilty of such laches as would bar her right to have the writing canceled, the suit for this purpose having been brought shortly after she discovered the character of the writing, and it appearing that she had remained in possession of the property, and there being involved no question as to the rights of third parties or innocent purchasers. See, in this connection, Hadaway v. Hadaway, 192 Ga. 265 (1a), 270 ( 14 S.E.2d 874), and citations; Jackson v. Jackson, 202 Ga. 634 (4), ( 44 S.E.2d 250).
The present case is distinguished by its facts from the line of cases cited for the defendants, where parties dealt with one another on a contractual basis, since, under the facts here alleged, no contract was contemplated, but the petitioner merely intended to execute a will.
Accordingly, the trial court did not err in overruling the defendants' general demurrer.
Judgment affirmed. All the Justices concur.