Opinion
13847.
SEPTEMBER 11, 1941. REHEARING DENIED SEPTEMBER 26, 1941.
Equitable petition. Before Judge Camp. Johnson superior court. May 12, 1941.
Emory L. Rowland and Paul T. Chance, for plaintiff.
J. Eugene Cook and Jay Garden, for defendants.
Delivery of a deed is essential to the conveyance of title thereby; and where the petition alleges that after the deed was executed it was safely kept by the grantor until his death, when it was found and recorded, it shows on its face that the deed was never delivered; and where the cause of action is dependent upon the validity of such a deed, the petition alleges no cause of action and is properly dismissed on general demurrer.
No. 13847. SEPTEMBER 11, 1941. REHEARING DENIED SEPTEMBER 26, 1941.
On the former appearance of this case ( Metropolitan Life Insurance Co. v. Hall, 191 Ga. 294, 12 S.E.2d 53), the exception was to a judgment overruling a general demurrer to the petition. The judgment on demurrer was reversed upon the grounds, (a) that the trust deed together with the allegations of the petition failed to identify the will dated July 25, 1883, as the particular will to which the deed referred for a description of the land sought to be conveyed, and (b) that if it be assumed that the will was sufficiently identified, the description of the land found in item 13, together with the allegations of the petition, constituted no valid description sufficient to pass title by the deed. Before the remittitur from this court was made the judgment of the trial court, the plaintiff filed an amendment seeking to cure the defects upon which the judgment of reversal was rendered. The amendment struck paragraph 5 of the original petition, wherein it was alleged that William P. Hall was the owner of a large body of land in the 56th and 1201st districts of Johnson County, the same consisting of ten or twelve adjoining tracts, and alleged in lieu of the stricken paragraph that William B. Hall was the owner of twelve separate and distinct tracts of land with distinct boundary lines to each, all located in the 56th and 1201st districts of Johnson County. The amendment set forth an explanation of the conflicts between the deed and will, as pointed out by this court in the previous decision. The amendment further averred that at the time of the preparation and execution of the trust deed William B. Hall, the grantor, had before him as a guide in preparing the deed his last will and testament which he had previously executed on July 25, 1883, and that the will was never changed or modified after its execution or after the execution of the trust deed, except as modified by the codicil to the will and by the trust deed. Then following this averment the amendment alleged "that both of said instruments after they were executed were safely kept together by the said William B. Hall until his death on August 19, 1885, when the two instruments thus safely kept and preserved by him together were found and thereafter recorded." The amendment further alleged that the land involved in this case is described in the will as "three hundred and fifty acres of land, more or less, lying upon the waters of Hutchins and Flat Rock, adjoining the Connor place." It further alleged that the 350 acres described in the will was, at the time of the execution of the trust deed, a separate and distinct tract and was the only 350 acres tract of land lying on Hutchins and Flat Rock in Johnson County, and that there were definite boundary lines around this tract of land, said boundary lines consisting of Hutchins, a well-known watercourse, on the east; Flat Rock, another well-known watercourse, on the west; the Connor place, a well-known separate and distinct tract of land with well-defined and established lines marked and staked off, on the south; and on the north by the Carter place, the dividing line being marked by stakes. The amendment struck the names of Atlanta Trust Company and Roland R. Doke as defendants.
To the petition as thus amended the defendants filed general and special demurrers, one ground of demurrer being that the amended petition alleged no cause of action. Upon a hearing the general demurrer was sustained and the action dismissed; and the plaintiff excepted.
When the case was considered by this court before, there was nothing in the petition as amended to indicate that the trust deed had never been delivered. The last amendment, however, shows that the deed in question was never delivered by the grantor, in that it is alleged that the grantor kept both the will and the trust deed after they were executed until his death, when the two instruments thus safely kept and preserved by him were found and thereafter recorded. The first question which this court must now decide is whether or not the document relied upon as a deed was ever delivered as the law requires. If this question is answered in the negative, it then becomes unimportant whether the description is sufficient or not. The Code, § 29-101, which sets forth the requisites of a deed to land, declares, in part: "A deed to lands must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or some one for him, and be made on a valuable or good consideration." The provision of the statute that a requisite to a deed to land is that it must be delivered must be met in every case, to give validity to such deed. Although the question of non-delivery might have been raised by a special demurrer, it was also raised by the general demurrer, since as we have above construed the amendment it shows on its face non-delivery. Where as in the present case the action depends upon the validity of a deed, the action must fail if there has been no delivery of the deed. Buffington v. Thompson, 98 Ga. 416 (2) ( 25 S.E. 516). The mere execution of a deed without delivery does not pass title, and will not sustain a suit based upon the deed. Brown v. Story, 94 Ga. 288 ( 21 S.E. 522); Story v. Brown, 98 Ga. 570 (3) ( 25 S.E. 582); Kesler v. Verner, 161 Ga. 118 ( 129 S.E. 843); Rawleigh Co. v. Royal, 30 Ga. App. 706 (3) ( 119 S.E. 339). Such delivery must be made during the lifetime of the grantor. Hill v. Hill, 149 Ga. 509 ( 101 S.E. 121); Willingham v. Smith, 151 Ga. 102 ( 106 S.E. 117); Stinson v. Woodland Bank, 154 Ga. 254 ( 114 S.E. 181); Peacock v. Horne, 159 Ga. 707 (3) ( 126 S.E. 813); Daniel v. Stinson, 179 Ga. 701 ( 177 S.E. 590). In Maddox v. Gray, 75 Ga. 452, it was said: "Delivery of a deed is essential to the conveyance of title thereby. Where it was shown that a deed was made, and that the grantor said that the land belonged to the grantee, but it was proved that the deed was never recorded, and was found by the grantee among the papers of the grantor after his death, there was no sufficient evidence of delivery, and a verdict finding against a title set up under such a deed was right." To the same effect, see Jenkins v. Southern Railway Co., 109 Ga. 35 ( 34 S.E. 355); Stallings v. Newton, 110 Ga. 875 ( 36 S.E. 237); Underwood v. Craven, 142 Ga. 658 ( 83 S.E. 520); Helmer v. Helmer, 159 Ga. 376 ( 125 S.E. 849); First National Bank of Gainesville v. Harmon, 186 Ga. 847 (4) ( 199 S.E. 223); Plowden v. Plowden, 52 Ga. App. 741 ( 184 S.E. 343). In Willingham v. Smith, supra, the grantor made a deed to the land involved to Hughey Smith, an imbecile, for life, with remainder to Mrs. Boney. The deed was attested in the presence of two witnesses, one of whom was an official. It was not recorded. After the death of the grantor the deed was found among the private papers of the maker in an envelope marked in the writing of the maker, "For Hughey." Some time before the grantor's death, he stated to a witness that he had made Hughey a deed to the Cleveland place. About three days before his death he asked the same witness to come back in a short time, saying that he wanted to turn those papers over to the witness. It was held that under these circumstances there was not a delivery of the deed as required by law, and that for this reason the deed was invalid. In the opinion it was said: "The most that can be said is that Sam P. Smith signed the deed for the purpose of thereafter delivering the same. Under the evidence, a finding that any of the acts or words of the maker were intended by him as delivery of the deed, or that by his acts and declarations he intended the deed to become presently operative as a conveyance of title, was unauthorized." The deed under consideration in Allen v. Hughes, 106 Ga. 775 ( 32 S.E. 927), had been recorded, and the decision there simply held that such recorded deed, which conveyed a life-estate to the wife with remainder to the children, was in proper custody when in possession of the wife, and that the fact that after the death of the grantor the deed was found in a trunk containing papers belonging to both the grantor and the life-tenant was not sufficient to rebut or overcome the presumption of delivery arising from the fact that the deed was duly recorded. The petition as amended, showing on its face that the deed constituting the basis of the suit was never delivered, was subject to general demurrer, and the judgment sustaining the general demurrer and dismissing the petition was not erroneous.
Judgment affirmed. All the Justices concur.