Beardsley v. Hilson

• Decision Date: 18 June 1894
• Citation: 20 S.E. 272,94 Ga. 50
• Parties: BEARDSLEY et al. v. HILSON HILSON v. BEARDSLEY et al.
• Court: Georgia Supreme Court

20 S.E. 272

94 Ga. 50

BEARDSLEY et al. v. HILSON

HILSON v. BEARDSLEY et al.

Supreme Court of Georgia

June 18, 1894

1. Where, under the evidence, the real issue as to the alleged delivery of a deed was whether the party to whom it was sent by the maker, and who shortly afterwards returned it declaring it unsatisfactory, had ever accepted it, a charge in the following words was erroneous and misleading: "A deed is 'delivered,' in the sense of the law, when the person who makes it puts it in the possession of the person to whom it is made, with the intention that it shall pass the title to such person. After such a delivery, the mere return of the deed by the holder thereof to the maker would in no wise affect the condition of the title. The title, after such return, would stand just where it did before the return." And it was also error to refuse to charge as follows: "If the plaintiff never accepted delivery of this deed, but it was brought to her by a person other than the grantor, and she immediately repudiated the deed, and brought it back to the grantor, saying she would not have it, there would be, in law, no delivery of the deed and it would not be effectual to pass the title to the plaintiff. Delivery, to be effectual, must be accepted as such."

2. Under section 2914a of the Code, a defendant in an equity case who was duly served with a copy of the bill, or acknowledged service of it, will, after the lapse of three years from the rendition of a decree in such case, be barred from instituting proceedings to set it aside. Such defendant was bound to know when the decree was rendered, and to take within the time prescribed by law, the proper steps to set it aside, it cause for so doing existed. A defendant not served or who did not acknowledge service, or appear and defend, is in no way affected by the decree. In the present case the evidence was not sufficient to support a finding that the plaintiff did not acknowledge service of the bill in question. It required clear and explicit proof to show that she had not been served.

3. The decree showing on its face that the counsel for the plaintiff in the case in which the decree was rendered claimed to have the consent of a defendant in that case to the terms of the decree, this was sufficient to put that defendant on notice that such consent was asserted of record, and require her to move within three years to set the decree aside.

4. A decree purporting to be rendered by consent of parties is not void upon its face because it declares the title to the premises in controversy to be in a person other than one of the parties to the record, it appearing from the record, taken in connection with extrinsic evidence, that this person was a purchaser pendente lite from one of these parties. Because of his purchase pendente lite, such person is bound by the decree, and, consequently, entitled to take the benefit of it; and his vendee of the premises, being his privy in estate, is likewise bound and protected by the decree.

5. Where, prior to the adoption of the constitution of 1868, an appeal in an action upon a promissory note was entered by consent from the county court to the superior court, a judgment rendered by the superior court without the intervention of a jury, after the adoption of that constitution, was not void; no issuable defense having been filed, and, consequently, there being nothing presented for a jury to try, and the judgment being for principal, interest, and costs only. In Walker v. Bevins, 57 Ga. 323, and Birdsong v. Woodward, Id. 354, the rights of securities on appeal were involved. In Seibels v. Hodges, 65 Ga. 245, it does not appear from the report that the appeal was entered by consent, and therefore without giving security, as was done in the present case.

6. The property levied upon being described in these words: "A lot and the improvements on the same (as said lot is now inclosed) on Houston street, in the 4th ward of the city of Atlanta, containing a half acre, more or less, adjoining the property of Francis, Haslett, and Jones, it being part of land lot No. 51 in the 14th district of originally Henry, now Fulton, county, Georgia, levied on as the property of Robert Yancey,"--the description was prima facie sufficient, although the premises adjoined only one of the persons named, and did not adjoin the other two; and the extrinsic evidence did not raise such a latent ambiguity, or disclose such want of accuracy, as would render the description too uncertain to uphold a sale made by the sheriff under the levy. As there was no mistake in the levy in setting forth the number of the land lot of which the premises were a part, it was error for the court, in its charge to the jury, to refer to any mistake in that regard.

Error from superior court, Fulton county; M.J. Clarke, Judge.

Action by Naomi Hilson against Charles P. Beardsley and others to set aside a decree against her, and in favor of defendants, in which there was a judgment for plaintiff. Defendants bring error, and plaintiff brings cross error. Reversed on main bill of exceptions, and affirmed on cross bill.

R.R. Arnold, for plaintiff in error.

Hall & Hammond, for defendants in error.

SIMMONS J.

A deed by Arnold conveying to the plaintiff the premises in dispute was attacked by the defendants, on the ground that the plaintiff had refused to accept the deed; Arnold testifying that, a day or two after it was executed and handed to the plaintiff's husband, to be delivered to her, she returned it to him (Arnold), saying it was "no account," and left it in his office; and it had remained in his possession ever since, until produced at the trial in response to notice. On this subject the defendants requested the court to charge the jury as follows: "If the plaintiff never accepted delivery of this deed, but it was brought to her by a person other than the grantor, and she immediately repudiated the deed, and brought it back to the grantor saying she would not have it, there would be, in law, no delivery of the deed, and it would not be effectual to pass title to the plaintiff. Delivery, to be effectual, must be accepted as such." The court refused to charge as requested, but charged that "a deed is 'delivered,' in the sense of the law, when the person who makes it puts it in the possession of the person to whom it is made, with the intention that it shall pass the title to such person. After such a delivery, the mere return of the deed by the holder thereof to the maker would in no wise affect the condition of the title. The title, after such return, would stand just where it did before the return." We think the court erred in refusing to charge as requested, and in charging as he did, on this subject. Delivery of a deed consists of more than the mere handing of the deed to the grantee. In order to constitute a complete delivery, there must be acceptance by the grantee. Where a grantee retains a deed without objection, acceptance will be inferred. It is a presumption of law that a party accepts whatever is for his benefit; but this presumption may be rebutted. Certainly, it cannot be the law that the mere handling to a person of a deed, which he forthwith returns and declines to accept, invests him, nevertheless, with the title which the maker of the deed seeks...