Austin v. Southern Home Building & Loan Ass'n
| Decision Date | 24 March 1905 |
| Citation | 50 S.E. 382,122 Ga. 439 |
| Parties | AUSTIN v. SOUTHERN HOME BUILDING & LOAN ASS'N. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Adverse possession of land is notice of whatever facts in reference to the title would be developed by inquiry of the person in possession; the presumption being that inquiry of him will disclose how and under what right he holds possession, and therefore lead to the discovery of the real adverse holder, whether himself or another, for or under whom he holds possession; and, in the absence of such inquiry, the presumption is that, had it been made, the right, title, or interest under which the possessor held would have been discovered.
2. The effect of possession is to put a prospective purchaser upon inquiry; and if it can be shown that he made such inquiry and followed it up in good faith, and was informed that the title was in another, from whom he purchased, the presumption arising from possession will be overcome.
3. Where husband and wife are in possession of land, the presumption is that the possession is that of the husband. The effect of this presumption is to charge a prospective purchaser with the duty of inquiring of the husband as to the state of the title, and, upon failure to make such inquiry he is bound by whatever facts an inquiry would have developed.
4. Where husband and wife are in possession of land, and the record title is in the husband, who makes application for a loan upon the property, asserting by his application title to and ownership in the property, the lender is protected against a secret equity of the wife; the conduct of the husband in applying for the loan indicating that a direct inquiry of him as to the true state of the title would be met with the response that he was the owner.
5. A deed to land, executed before and attested by a notary public in the county where he holds his appointment, may thereupon be recorded in another county, where the land lies.
6. One who is an agent and attorney at law of a lender of money, who represents such lender in negotiations for a particular loan and who is also a notary public, may, in the latter capacity lawfully attest a security deed given to secure the loan negotiated by him.
7. When a claimant in a statutory claim case files a petition in aid of his claim, praying equitable relief, and such petition is answered, the statutory proceeding is converted into an equity case, so that, when the same is referred to an auditor, exceptions of fact to his report need not be submitted to a jury unless the judge approves them, and whether they shall be approved is a matter addressed to the sound discretion of the judge. In the present case it has not been made to appear with that certainty which the law requires that the judge abused this discretion.
8. When an execution is levied, and a claim interposed, and the claimant, in aid of his claim, files an equitable petition praying that, in the event the property is found subject, the amount due on the execution be ascertained, offering to pay that amount, and the answer to the equitable petition is purely defensive, a decree fixing an amount due by the defendant in execution larger than the total amount due on the execution, and charging the land with its payment, is unauthorized by the pleadings.
9.
10. Directions given as to the entering of a final decree.
Error from Superior Court, De Kalb County; L. S. Roan, Judge.
Action by the Southern Home Building & Loan Association, for the use of the Equitable Loan & Security Company, against H. C. Austin. Judgment for plaintiff. On levy of execution, Sallie E. Austin, wife of defendant, filed a claim. Judgment for plaintiff, and claimant brings error. Affirmed, with directions.
An execution for $1,207.56 principal, and $60 interest to August 14, 1897, in favor of the Southern Home Building & Loan Association, for the use of the Equitable Loan & Security Company, against Henry C. Austin, and especially against a described tract of land, was levied upon the land therein described; and a claim was interposed by Sallie E. Austin, wife of the defendant in execution. In aid of her claim, she filed an equitable petition alleging facts which she contended entitled her to assert an equitable title to the property against the plaintiff in execution. The prayers of the petition were that judgment be entered finding the property not subject to the execution; that, in the event this prayer was refused, the amount due the plaintiff on the execution be ascertained; and that, in the event the property was found subject, she be permitted to pay the amount due, which she tendered and offered to pay. The plaintiff in execution filed an answer to this petition, in which the allegations relied on to establish the claimant's equitable title were denied. Henry C. Austin was made a party to the case, which came on for trial; and the judge, of his own motion, referred it to an auditor. The auditor filed a report, and the claimant filed numerous exceptions of law and fact; one of the exceptions being that the findings had not been properly classified and arranged in the report. This exception was sustained, and the auditor was directed to file his report in accordance with the statute in reference to the classification of findings. In compliance with this order, the auditor filed a second or supplemental report. This report classified the findings of law and of fact; the findings being, in substance, the same as those in the original report. The claimant filed exceptions to the supplemental report, and also urged the exceptions which had been filed to the original report. The case came on to be heard before the judge on the exceptions filed, and he refused to approve any of the exceptions of fact, sustained some of the exceptions of law, overruled others, and entered a decree on the auditor's report as modified by his ruling on the exceptions of law. The claimant excepted to the refusal of the judge to approve her exceptions of fact, to the overruling of some of her exceptions of law, to the refusal to submit the exceptions of fact to a jury, and to the decree as rendered.
The facts as found by the auditor were, in substance, as follows Austin bought the property in controversy, and took a bond for titles in his own name; making a payment in cash, and giving his notes for the balance of the purchase money, in compliance with the bond for titles. The obligors therein executed a deed to Austin, and deposited it with a bank, to be delivered when the purchase-money notes were paid. Austin delivered the bond for titles to his wife, who had furnished the money to pay for the property, but made no written transfer of the same to her at that time. Mrs. Austin, in addition to paying the purchase money for the lot, expended about $3,500 of her own money in making improvements on the property; this being done while the bond for titles was actually in her possession, but no transfer of the same had been made to her. Prior to the time that her husband incurred the indebtedness to the plaintiff, she had been in possession of the property by her tenant; and, at the time the plaintiff loaned the money to her husband, and took a deed from him to secure its payment, the property was in possession of Alonzo Field, who was not a tenant of Mrs. Austin, but who was in possession under a contract of purchase from her as the owner. The plaintiff had no actual knowledge of the fact that Mrs. Austin had furnished the money to pay for the lot, or that the improvements thereon had been paid for with her money, or that she claimed the same as her property. At the time the money was loaned to Austin, the record title to the property was in him. Subsequently to the execution of the security deed, Field, having failed to comply with his contract of purchase, surrendered possession to Mrs. Austin, and she rented the property to different parties from time to time. Austin transferred the bond for titles to his wife about the time that Field made his contract of purchase, but the transfer had not been recorded at the time the plaintiff's claim originated. While Field was in possession, Austin applied to the plaintiff for a loan of $1,000; claiming the property as his own, and presenting an abstract of title. The security deed was dated August 14, 1894. On April 29, 1895, Field still being in possession, the plaintiff made an additional loan of $400 to Austin, and took a second security deed to the property. On November 14, 1895, the plaintiff made another loan of $2,000 to Austin, which was secured by a deed to another tract of land, in which Mrs. Austin claimed no interest. This tract of land was subsequently sold by the sheriff under an execution in favor of the plaintiff, and bought by the Equitable Loan & Security Company at the price of $1,525, but under an agreement with the defendant in execution that he was to have credit for this property at the sum of $2,750. A finding of fact which appears in the supplemental report, and which did not appear in the original report, was that while Mrs. Austin had furnished her husband money enough to pay for the property in controversy, with directions to so apply it, he had in fact used a part of the money borrowed from the plaintiff in making the final payment of the purchase money, although this fact was not known to Mrs. Austin at...
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