Opinion
15395.
FEBRUARY 21, 1946.
Complaint for land. Before Judge Perryman. Taliaferro Superior Court. October 26, 1945.
Osgood O. Williams and Miles W. Lewis, for plaintiff.
Earle Norman, for defendants.
1. Where a voluntary conveyance of land is made by one who subsequently for value conveys the same land to another as security for a loan, such voluntary conveyance can not prevail as against one who acquires title under a foreclosure of the loan deed, unless such title be acquired with actual notice of the voluntary deed, or constructive notice by actual adverse possession of the lands by the holder of such voluntary deed.
2. Where, in an ejectment proceeding, the defendant claims title under an unrecorded voluntary deed, and the plaintiff claims title under a subsequent conveyance by the grantor in the voluntary deed to another as security for a loan, such conveyance being transferred to, foreclosed, and the property bought at the foreclosure sale by the plaintiff, and where under the evidence the jury would be authorized to find that the plaintiff acquired title without notice of such voluntary conveyance, it is reversible error, even in the absence of a request, for the trial judge to fail to give in charge to the jury section 96-205 of the Code, as follows: "Every voluntary deed or conveyance made by any person shall be void as against subsequent bona fide purchasers for value without notice of such voluntary conveyance."
No. 15395. FEBRUARY 21, 1946.
H. McDonald filed a statutory petition in ejectment against R. B. Taylor, E. F. Taylor, and Mrs. E. F. Taylor, alleging that the defendants are in possession of a tract of land in Taliaferro County, known as the Mrs. Ella Taylor home place, containing 100 acres, more or less, "bounded on the north by the Georgia Railroad Banking Company, on the east by lands of Aubrey H. Lyle and the John Moore estate, on the south by lands of Mrs. R. W. Golucke and W. W. Byrd, and on the west by lands of W. W. Byrd, in the 601st district G. M., to which your petitioner claims title;" that the defendants have received rents and profits since January 1, 1943, of the value of $200; and that they refuse to deliver possession of said land to the plaintiff or pay him the profits thereof. To his petition the plaintiff attached an abstract of title which, as amended, shows a loan deed of Mrs. Ella Taylor to the Bank of Crawfordville, dated January 30, 1926; a loan deed from Mrs. Ella Taylor and E. F. Taylor to the Bank of Crawfordville, dated July 11, 1928; a quit claim deed and a transfer of the note and loan deed that was dated January 30, 1926, from Mrs. Ella Taylor to the Bank of Crawfordville, the transfer being dated July 26, 1937, and made to H. McDonald; a quitclaim deed and a transfer of the deed that was dated July 11, 1928, from Mrs. Ella Taylor and E. F. Taylor to the Bank of Crawfordville, such transfer being dated July 26, 1937, and made to H. McDonald; and a deed from Mrs. Ella Taylor to H. McDonald, under a power of sale contained in the loan deeds, and made by H. McDonald as attorney in fact.
The defendants, R. B. Taylor and E. F. Taylor, filed a disclaimer; and the defendant, Mrs. E. F. Taylor, filed a plea and answer, in which she denied possession by the three defendants named in the ejectment petition, and contended that she was in possession of the following land: "All that tract or parcel of land lying and being in the 601st District, G. M. of Taliaferro County, Georgia, containing 30 acres, more or less, bounded north by State Highway No. 12, east by lands formerly of Angeline Hale, now Mary A. Clark and Arkie Battle, south by lands formerly of C. Bergstrom, now R. W. Golucke and lands formerly of T. N. Chapman, now Rem B. Edwards Estate, and west by private road leading north to paved highway separating this land from land of Miss Blanche Taylor;" and that the tract of land claimed by her was included within the boundaries of the land described in the plaintiff's petition. She admitted that she had refused to deliver possession of the tract of land described above, and alleged: That the tract of land described in her answer is hers; that Mrs. Ella Taylor in August, 1907, executed and delivered to her a warranty deed, as described in a copy attached; that immediately thereafter she began building a home on said tract of land and farming the same; that she moved in said home in November, 1907, and resided there until it was destroyed by fire in July, 1924; that the warranty deed from Mrs. Ella Taylor to the defendant was destroyed by the fire that burned the home; and that the defendant has been in possession of said tract of land under said deed from August, 1907, until this date, and her possession has been at all times adverse, open, visible, exclusive, unambiguous, uninterrupted, and peaceable. She prayed that the copy of the deed attached to her petition be established in lieu of the destroyed original, and that she have title decreed in her to the property described therein.
On the trial, the defendant, Mrs. E. F. Taylor, admitted a prima facie case for the plaintiff, H. McDonald's, and assumed the burden of proof.
The evidence for the defendant was, in brief, as follows: That she married E. F. Taylor, son of Mrs. Ella Taylor, in 1907. Shortly thereafter Mrs. Ella Taylor gave her a deed to the lands described in her answer. Her husband made application to "the Bank" for a loan to be used in building a home, and Mr. Holden, president of the bank, on learning from her husband that the defendant owned the property, required the defendant to sign the loan papers. The defendant and her husband completed the building of a home on said lands in November, 1907, moved into the same, and lived there until July, 1924, when the house was destroyed by fire. The deed given to the defendant by her mother-in-law was burned in the fire, said deed never having been recorded. After the house burned, the defendant and her husband moved back into the home of Mrs. Ella Taylor, where they have since resided. The defendant stated that she continued in possession of the lands, conveyed to her, after the home was destroyed, in that she farmed the same through her husband. The evidence of E. F. Taylor, husband of the defendant, on the question of cultivation or possession by the defendant was in part as follows: "After the house burned down, we moved back across the road to my mother's house and continued to farm the place and take care of it as prior to that time, and returned all of it for taxes as my mother's property. . . We all cultivated the place as one farm during the time our house was there." The husband of the defendant further testified that his mother signed the deed to the bank in 1926, and that both he and his mother signed the deed to the bank in 1928. Both deeds called for 100 acres, more or less, but it was not disputed that the boundaries in both of said deeds included the 30-acre tract claimed by the defendant, although the husband did state that neither he nor his mother knew where the boundaries were, the same being copied by Mr. Holden from certain crop mortgages.
The evidence for the plaintiff, H. McDonald, showed transfers to him of the notes and two deeds from Mrs. Ella Taylor to the Bank of Crawfordville in July, 1937, and a foreclosure under a power of sale and purchase by the plaintiff in June, 1938, as outlined by the abstract of title attached to his petition; and further, that he had no notice of the claim of the defendant to the 30-acre tract until after he had procured title to the same.
The jury returned a verdict for the defendant, Mrs. E.F. Taylor. The plaintiff filed a motion for new trial on the general grounds, and later amended his motion by adding two special grounds, the first amounting to the same contentions as in the original motion, that the verdict was contrary to the evidence and without evidence to support it. The second special ground contends that the court should have given in charge to the jury § 96-205 of the Code. The motion for new trial was overruled, and the plaintiff excepted on each of the grounds set out therein.
1. A voluntary conveyance is a conveyance without any valuable consideration. 2 Bouvier's Law Dictionary (3d Rev.), p. 3408. "Every voluntary deed or conveyance made by any person shall be void as against subsequent bona fide purchasers for value without notice of such voluntary conveyance." Code, § 96-205. The evidence offered by the defendant, Mrs. E. F. Taylor (defendant in error in this court), demanded a finding that the alleged conveyance to her from her mother-in-law, Mrs. Ella Taylor, was in fact (if made and delivered as contended) a voluntary deed. The copy attached to her response recites love and affection and other consideration; no other consideration was claimed or shown. The defendant said that she kept such unrecorded voluntary deed in her trunk from 1907 until 1924, when the same was burned in the fire which destroyed her home.
No contention is made by the defendant that the boundaries in the deed made by her mother-in-law, Mrs. Ella Taylor, to the Bank of Crawfordville do not include the 30 acres claimed by her. On the contrary, it is conceded that such boundaries do include the 30-acre tract. "A deed which describes the premises, giving the boundaries and estimating the area as containing a certain number of acres, `more or less,' conveys all the land embraced in the calls, although the acreage may exceed the estimate." McElroy v. McElroy, 142 Ga. 37 (4) ( 82 S.E. 442). See also Collinsville Granite Co. v. Phillips, 123 Ga. 841 ( 51 S.E. 666); Georgia Florida Development Co. v. Buck, 134 Ga. 675 (2) ( 68 S.E. 514); Rawlings v. Cohen, 143 Ga. 726 ( 85 S.E. 851); Blaylock v. Hackel, 164 Ga. 257 ( 138 S.E. 333).
The plaintiff, H. McDonald (plaintiff in error in this court), contends that he had no notice of the claim of the defendant until after he procured title to the property in question under the deed made by Mrs. Ella Taylor to the Bank of Crawfordville, and later transferred to, and foreclosed by the plaintiff. There is evidence that, at the time the defendant and her husband were constructing a house on the 30-acre tract in 1907, her husband went to the bank to procure a loan; that inquiry was made as to the title to the property; and that Mr. Holden, president of the bank, upon learning that the defendant claimed title to the property, required that she sign the papers to the bank in connection with the loan made. There is no evidence in the record that Mr. Holden ever communicated this information to the plaintiff or to anyone.
"If one with notice shall sell to one without notice, the latter shall be protected." Code, § 37-114; Wells v. Blitch, 184 Ga. 616 (4) ( 192 S.E. 209). This court applied the above Code section to voluntary conveyances in West v. Wright, 121 Ga. 470 ( 49 S.E. 285), where it was stated: "Where one makes a voluntary conveyance of land, and subsequently, for a valuable consideration, conveys the same land to another who knows that the grantor has previously made the voluntary conveyance, and the grantee in the later deed sells and conveys the land to another person who has no notice, such last grantee will be protected against the voluntary deed."
In Scott v. Atlas Savings Loan Assn., 114 Ga. 134 ( 39 S.E. 942), the court ruled that the holder of a security deed, executed in consideration of a loan made at the time by the grantee to the grantor, is entitled to the same protection as the holder of a deed of bargain and sale. If the plaintiff did in fact acquire his title under a proper transfer and foreclosure of the security deeds from Mrs. Ella Taylor to the Bank of Crawfordville, without notice of the claim of the defendant under her voluntary deed, the rule stated in West v. Wright, supra, would control and the plaintiff will be protected against such voluntary deed.
The plaintiff, however, could not rely solely on the knowledge which he may have been able to gather from the records at the courthouse. If, in fact, the defendant had been in such "adverse, open, visible, exclusive, unambiguous, uninterrupted and peaceable possession" as to put the plaintiff on inquiry as to the defendant's interest, and the plaintiff had failed or refused to make such inquiry, he would not now be heard to say that he did not have notice of her claim. "Knowledge chargeable to a party who is put on inquiry is not limited to such knowledge only as would be gained from an examination of the public records." Dyal v. McLean, 188 Ga. 232 ( 3 S.E.2d 571). But there is another rule of law of equal application to the facts in this case, which is that, "The protection which the registration law gives to one taking title to lands upon the faith of the record title should not be destroyed except upon clear and satisfactory evidence showing a clear equity in him who seeks to establish a right in hostility to the record title. Such possession must be actual, open, visible, exclusive, and unambiguous." McDonald v. Dabney, 161 Ga. 714 (8-c, d) ( 132 S.E. 547). And in such a case, "Prior possession of land is not notice to a purchaser. Possession of real property which will charge a purchaser with notice is possession at the time the purchaser obtains his title." Wood v. Bowden, 182 Ga. 329 (6) ( 185 S.E. 516).
Does the evidence in this case show such possession by the defendant, after the date her house burned in 1924, and at the time the plaintiff acquired the security deeds made by Mrs. Ella Taylor to the Bank of Crawfordville in 1937, as to fully meet the requirement in such cases, so as to constitute notice of her claim? The only evidence by the defendant on the question of her possession from the date her house was destroyed, and she moved back into the home of her mother-in-law, was that she continued to farm the lands (the 30-acre tract) through her husband. The evidence of the husband in this connection was in part as follows: "After the house burned down, we moved back across the road to my mother's house and continued to farm the place and take care of it as prior to that time, and returned all of it for taxes as my mother's property. . . We all cultivated the place as one farm during the time our house was there."
Under the evidence of the husband, during all of the time in which he and his wife resided on the 30-acre tract, the family of Mrs. Ella Taylor, composed of several members besides the defendant and her husband, cultivated the 100 acres and the 30 acres as one farm. Under testimony by the same witness, this procedure was followed by the family in the years after the burning of the house on the 30-acre tract in 1924. This evidence by the defendant and her husband does not show continuous and adverse possession in the defendant. In Bell v. Bell, 178 Ga. 226 ( 172 S.E. 566), it was held: "Possession of land is generally notice of whatever right or title the occupant has. Civil Code, § 4528 [now 85-408]. To have this effect the possession must have some element in it indicative that the occupancy is exclusive in its nature. Manning v. Manning, 135 Ga. 597 (3) ( 69 S.E. 1126). Such `possession must be open, visible, exclusive, and unambiguous, not liable to be misconstrued or misunderstood. It must not be a mixed or ambiguous possession. So it has been held that possession of land by the grantee, holding under an unrecorded deed, together with the grantor, is not constructive notice of the unrecorded deed to a subsequent purchaser.' McDonald v. Dabney, supra." See also Durham v. Holeman, 30 Ga. 619; Walker v. Hughes, 90 Ga. 52 ( 15 S.E. 912); Yundt v. Davison, 186 Ga. 179 ( 197 S.E. 248); Martin v. Clark, 190 Ga. 270 ( 9 S.E.2d 54).
The defendant having failed to meet the requirement of showing possession by her, as alleged in her answer, she is not entitled to prevail.
2. Headnote 2 does not require elaboration.
Judgment reversed. All the Justices concur.