Opinion
33167.
DECIDED JULY 14, 1950. REHEARING DENIED JULY 31, 1950.
Bail trover; from Fulton Civil Court — Judge Robert Carpenter. May 16, 1950.
Winfield P. Jones, for plaintiff in error.
William S. Shelfer, William F. Buchanan, Mary J. Nelson, contra.
1. Where, as here, the action is in bail trover for the possession of a deed to realty, and the evidence conclusively shows that the sole purpose of the action is to test the issue of whether or not the deed had been delivered so as to effectively pass the title to the realty, title to realty is involved, and the superior court has exclusive jurisdiction. Accordingly, in the instant case, the Civil Court of Fulton County is without jurisdiction.
The trial court erred in directing a verdict for the plaintiff as contended in ground 4 of the amended motion for a new trial.
2. The remaining grounds of the amended motion for a new trial are without merit.
DECIDED JULY 14, 1950. — REHEARING DENIED JULY 31, 1950.
Mrs. Emma Lee Barfield, as administratrix of the estate of her deceased husband, A. A. Barfield, brought a bail-trover proceeding in the statutory form against F. L. Breen for possession of an undated and unrecorded deed from James S. Bagwell to A. A. Barfield, the value of which deed was alleged to be $10,000. The deed was surrendered by him to the marshal of the civil court, the defendant taking a receipt therefor reciting that the deed was unrecorded. Before the trial of the case the marshal caused this paper to be recorded in the Superior Court of Fulton County. The defendant testified that he claimed no right, title or interest in the document, but that it had been turned over to him by the purported grantor, James S. Bagwell, and for that reason he was not free to turn it over to the plaintiff in this case, her interests and those of Bagwell being adverse. Since, under the decision of this court when this case was here previously on the overruling of a general demurrer ( Breen v. Barfield, 80 Ga. App. 615, 56 S.E.2d 791), and the decision of Dobbs v. First National Bank of Atlanta, 65 Ga. App. 796 ( 16 S.E.2d 485), the real issue in this case is whether the trover action is a bona fide attempt by an administratrix to recover personalty belonging to the estate of the decedent (in which case a trover action will lie) or whether it is a means of testing delivery of the deed between the grantor therein (Bagwell) and the grantee (the deceased) during the lifetime of the latter (in which case the real issue is not the actual recovery of the specific deed but is an attempt to adjudicate title to land by proving delivery of the deed during the lifetime of the parties) the evidence is here briefly set forth.
John G. Slappey, a notary public, testified that the deceased A. A. Barfield and his brother-in-law by a previous marriage, James S. Bagwell, requested the witness to make up two warranty deeds on property at 144 Pine Street, Atlanta, Georgia, one from Barfield to Bagwell, the other from Bagwell to Barfield. The property belonged to Barfield, who had recently remarried and was being threatened by a breach of promise suit. The witness stated that both deeds were signed and delivered to the respective grantees in his presence. On cross-examination he denied having made statements which were read from the evidence in another case in which he had purportedly testified that Barfield took and kept both deeds at the time they were signed. The deed from Barfield was recorded; the uncompleted deed to Barfield was not recorded.
J. Lon Duckworth, a lawyer, testified that shortly after the death of A. A. Barfield, his widow, the plaintiff in this case, came to his home with a large bundle of papers, among which was the unrecorded deed to Barfield which is the subject-matter of this suit. She was accompanied by her stepson, Edwin A. Barfield. The witness recommended another attorney and suggested that instead of having an administration of the estate that the unrecorded deed in question be destroyed and a deed made in its place by the grantor Bagwell, either to the widow or the widow and her stepson jointly, they being the only heirs. The plaintiff testified that she had had possession of the deed from Bagwell to the deceased; that while he was living it had been kept in his bank box and later at their home in a drawer; that after his death she and her stepson took it and other papers and showed them to Mr. Duckworth; that she then took the deed and gave it to Bagwell, and that Bagwell made out another deed to the property in which she was the named grantee; that both these deeds were then delivered by Bagwell to attorneys Parham and Breen; that she also turned over to Bagwell the original recorded deed from the deceased to him; that he agreed to hold all these deeds until she called for them; that in consideration for this agreement she gave him a diamond ring which was returned to Bagwell's sister (a sister of the former wife of the deceased). The plaintiff further testified that she went with her attorney to the office of the defendant for the purpose of demanding the deeds, and that he turned over to her the deed from Bagwell to her but refused to turn over the deed from Bagwell to the deceased, for the purpose of recovering which this action was brought.
Edwin A. Barfield testified that he was the son of the deceased; that the deed in question was at his father's house at the time of his death; that there is now pending between him and the plaintiff a suit involving this property, which he brought because of the plaintiff's statement to him that she had given the deed back to Bagwell.
The defendant, F. L. Breen, testified that he was the attorney for Bagwell; that he had several times communicated with the parties about the deeds in question; that the plaintiff had informed him that upon her husband's death she returned the deed to Bagwell, the maker, because her husband had told her that if anything happened to him she was to give it back to him. On cross-examination he testified that after this action was brought he drew a deed from Bagwell to Winfield P. Jones conveying the property to him, and thereafter brought suit for Jones in ejectment against the plaintiff. J. R. Parham, attorney, testified that Bagwell had turned the deed over to him and that he had turned it over to the defendant; that he, the defendant, Jones and Bagwell had entered into a contract to divide the value of the property between them in the event Jones' ejectment suit was successful.
James S. Bagwell testified that the deceased was his brother-in-law, having married his sister prior to his marriage to the plaintiff; that the property at 144 Pine Street had been purchased by his sister, Willie D. Barfield, and that he had lent her approximately $3000 with which to pay off the mortgage on it; that he also let the deceased have $100 at the time his wife (Bagwell's sister) died, for hospital expenses; that shortly after her death the deceased informed him that his sister had willed him the property but that he, Barfield, had torn up the will; that he acknowledged the debt; that he was going to make the witness a deed to the property which would be recorded, and that the witness should sign a deed back to him which would be used only in the event that at some future time he was able to pay back the $3000; that at the time he signed this instrument it was a blank form, and that neither names, description nor consideration were filled in; that the recorded deed in which the witness was grantee, as well as the other, were given to the deceased to keep because he had a locker box; that after Barfield's death the plaintiff brought both papers to his house, saying of the recorded deed, "Here's yours," and of the other deed which is the subject of this suit, "He told me to give it to you if anything happened to him." The witness also testified that he had signed a paper for the plaintiff, but did not know it was a deed, and denied it was witnessed in his presence; that he had made a deed to Jones and a contract under which he would receive half the proceeds and Jones, Parham and Breen the other half if the litigation were successful; that the plaintiff had offered to sell the property for $10,000.
James B. Windsor testified that he is a son-in-law of Bagwell and that he was present when the plaintiff brought the deeds to Bagwell; that she said she had brought them out there for him to keep them; that the deed in issue did not have the description of the property filled in; that the plaintiff stated her husband had told her to give Bagwell the papers in the event of his death. The witness' wife testified to the same effect.
At the close of the evidence a verdict was directed in favor of the plaintiff. The defendant filed a motion for a new trial on the general grounds, later amended by adding 5 special grounds numbered 4 to 8 inclusive, and the overruling of this motion is assigned as error.
1. The defendant relies upon Dobbs v. First National Bank of Atlanta, 65 Ga. App. 796 (3), which holds as follows: "Trover in this State takes the place of replevin and detinue at common law, and, in the case of deeds where such action is available, involves only the conversion of the res in question, and does not extend to include the title to land of which the deed is only evidentiary. If the title to the land under the petition is the primary purpose of the suit, and not the title to the deed itself, the Civil Court of Fulton County is without jurisdiction." It was there held that the allegations of the petition, one of them being that the value of the deed is placed at $2500 (the value of the land also being alleged to be $2500) showed that the purpose of the suit was to test delivery of the instrument. "It would seem clear that the action, so far as the allegations of the petition are concerned (we do not mean to intimate what the evidence might show) make a case, not for the recovery of a deed which has been delivered, but for the purpose of testing the delivery of the deed, without which delivery the deed would be ineffectual to pass the title to the land described therein. In such event delivery of the deed is essential to pass title. Therefore, this action involves a suit respecting title to land."
The petition in the case at bar was in the "Jack Jones" form and contained no evidentiary matter. It was held by this court on appeal from the judgment overruling the demurrer ( Breen v. Barfield, 80 Ga. App. 615) based on the Dobbs case, as follows: "In the Dobbs case, the petition, by stating the cause of action with greater particularity than was necessary, showed on its face that it was an action respecting title to land — what, in the event of the plaintiff's having used the statutory form (as was accurately followed in the instant case) would not have developed until the evidence was presented." (Italics ours.) We now have the evidence before us, and can come to no other conclusion than that the purpose of the bail-trover proceeding (which alleges the value of the deed to be the same amount as the evidence shows the value of the property to be) is to test (1) whether the delivery of the deed was conditional upon the deceased paying back the alleged debt of $3000, (2) whether the deceased instructed his wife to return the deed to the grantor upon his death (in which event he did not himself consider the delivery complete) and (3) whether the deed was both conditionally delivered and delivered in blank, the names of the parties and description of the property being filled in after the alleged grantee's death. The evidence thus shows what the petition in the Dobbs case revealed on its face — that the suit is a means of adjudicating title to land, rather than a suit merely for the possession of the deed itself, as a valid deed and muniment of title. Since the sole purpose of the action as disclosed by the evidence was to test the issue of whether or not the deed had been delivered so as to effectively pass the title to the realty, title to realty is involved and the superior court has exclusive jurisdiction. The Civil Court of Fulton County is therefore without jurisdiction, and the case must be reversed on the general grounds and special ground 4 of the amended motion for a new trial, which complains of the direction of a verdict in favor of the plaintiff.
2. The remaining special grounds of the amended motion for a new trial are without merit.
The trial court erred in overruling the motion for a new trial as amended.
Judgment reversed. MacIntyre, PJ., and Gardner, J., concur.