Coniff v. Hunnicutt
| Decision Date | 15 April 1924 |
| Docket Number | 3864. |
| Citation | 122 S.E. 694,157 Ga. 823 |
| Parties | CONIFF ET AL. v. HUNNICUTT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The registry of a deed not attested, proved, or acknowledged according to law, is not constructive notice to a subsequent bona fide purchaser. Applying this principle, the court did not err in its instruction to the jury set out in the first ground of the amendment to the plaintiffs' motion for new trial.
The instruction to the jury, set out in the second ground of the amendment to the motion for new trial, was not erroneous for any of the reasons assigned.
An exception by plaintiffs to the whole of a long excerpt from the charge of the court is not well taken, where such charge embraced, among other propositions, an instruction invoked by the plaintiffs.
(a) An exception to an instruction embraced in this excerpt, to the effect that one who buys land for value without knowledge or notice of a senior unrecorded deed from the same vendor, and takes a bond for title or deed which is duly recorded acquires a title superior to that of the vendee in such senior deed, the exception being that this principle only obtains between persons sui juris and is not applicable to minors, is not well taken.
(b) The exceptions to the portion of this excerpt which deals with the burden of proof are without merit.
Ordinarily an obligation made by a person to whose name is added therein the word "guardian" is the individual undertaking of such person; and where notes are made payable to him, with this word following his name, they are due to him in his individual capacity; and the addition of the word "guardian" to the name of the obligor in the bond for title, or to the payee in notes given for the purchase money of lands embraced in such bond, may, as between the parties, be treated as descriptio personæ, and such bond will be treated as the individual obligation of the maker, and such notes will be held payable to the payee therein individually.
(a) But while this is so, if a father undertakes to sell land of his minor children as their guardian, when he is in fact only their natural guardian, and without authority to sell the same, his children, in an action to recover their interests in such land, can show this state of facts in order to defeat the title of the vendee. The bond for title of the father in the form aforesaid, and notes given by the purchaser for the purchase money, payable as aforesaid, were competent evidence to establish the contention of the plaintiffs that their father was acting in their behalf in making the sale to the defendant, and that the defendant so treated this transaction.
(b) This being so, the instruction of the court, that this bond for title was an individual obligation of the father withdrew from the jury the contention of the plaintiffs that he executed this instrument pretending to act as their guardian, and was tantamount to telling the jury that the transaction resulting in the sale of this land by him to the defendant was in his individual capacity, and not in the character of his assumed position as their guardian.
(c) This being so, this instruction was an intimation of OPINION upon the evidence, and invaded the province of the jury.
The exceptions to the instruction set out in the fifth ground of the amendment to the motion for new trial are without merit.
The charge of the court upon the subject of setting off improvements was incomplete and did not accurately apply the provisions of Civ. Code 1910, §§ 5587, 5588.
The principles embraced in the plaintiffs' requests for instructions, so far as they were correct and pertinent, were covered by the charge of the court.
As we grant a new trial, we do not pass upon the evidence.
Error from Superior Court, Cobb County; D. W. Blair, Judge.
Action by L. C. Coniff and others against L. O. Hunnicutt. Judgment for defendant, and plaintiffs bring error. Reversed.
On January 26, 1916, John W. Cason, Katie Cason Massey, B. F Cason, R. M. Cason, Lena Cason Coniff, Julia Cason Puckett J. P. Cason, and Daniel L. Cason, respectively 37, 36, 33, 31, 27, 25, 22, and 20 years of age, instituted their action of ejectment to recover each a one-ninth undivided interest in land lot 391 in the first district and second section of Cobb county and the mesne profits thereof. Plaintiffs allege that Ella Cason died in possession of said lot on December 20, 1903, that they and their father, C. L. Cason, were the heirs at law of Ella Cason, that there never was any administration on the estate of Ella Cason, and that the title to the land descended to plaintiffs and their father as heirs at law of Ella Cason as tenants in common. By an amendment plaintiffs struck the names of John W. Cason, B. F. Cason, Katie Cason Massey, and R. M. Cason, and the case proceeded in the names of the other plaintiffs. By this amendment the plaintiffs struck out the words "first district," as the district in which said lot was located, and inserted in lieu thereof the eighteenth district. They further alleged that the defendant holds under a deed dated November 26, 1909, recorded September 18, 1917, in which the original plaintiffs and "C. L. Cason, guardian," quitclaimed and conveyed said lot to the defendant; that the present plaintiffs, at the time said deed was executed, were minors; that the deed was executed by C. L. Cason as guardian, who was not their guardian; and that these plaintiffs never signed the deed.
In her answer the defendant denied the substantial allegations of the original petition; and by an amendment she alleged that she made valuable and permanent improvements on the premises, of the value of $5,025, that plaintiffs would not be entitled to mesne profits exceeding $150 per annum, if they held such title as would authorize them to recover, and that without such improvements the premises would not have had a higher rental value than $25 per year; and she prayed to have the improvements set off against the value of this land. By another amendment the defendant alleged that she bona fide claimed title to the lot of land in dispute; that on November 23, 1907, she contracted to purchase the lot from said C. L. Cason for $525; that in pursuance of the contract of purchase she paid Cason $250 in cash and delivered to him her three notes, payable 12, 24, and 36 months after date for $125, $100, and $100, respectively, and Cason executed and delivered to her his contract for the sale of the land, a copy of which she attached and made a part of her answer; that Cason delivered possession of the lot to her; that she has been in the actual, adverse, open, notorious, and exclusive possession thereof until the present time, claiming the same as her own; that she paid said three notes; that Cason exhibited to her, at the time she bought the lot, his deed and title papers thereto, consisting of a chain of title from the state into him; that she bought the land in good faith, believing that it was the property of Cason; that he turned over to her his muniments of title, and having paid the purchase price of said land and having had possession thereof as stated, she has the title thereto. The bond for title from Cason was dated November 23, 1907, was attested by two witnesses, one of them a notary public, and was recorded December 19, 1907. It covers the lot of land in dispute. In the body of the bond it is recited that "C. L. Cason, guardian, * * * is held and firmly bound unto Mrs. Lola Odelle Hunnicutt," the defendant in this case, and signed by Cason in his individual capacity.
On the trial of the case on March 14, 1923, the plaintiffs introduced evidence tending to establish these facts: Ella Cason was the mother and C. L. Cason was the father of the plaintiffs. Ella Cason died in 1902, and C. L. Cason died in 1912. Ella Cason was survived by her husband, C. L. Cason, and eight children. These children were J. P. Cason, R. F. Cason, R. M. Cason, Julia Cason Puckkett, B. L. Cason, Lena Cason Coniff, Katie Cason Massey, and John W. Cason, who, at the time of the trial, were respectively 29, 39, 37, 32, 26, 33, 43, and 45 years of age. The annual rental of the place is worth $400. The land is worth $100 per acre, without the improvements. The deed from C. L. Cason to Ella Cason, under which plaintiffs claim, was in possession of C. L. Cason after the death of his wife. At the time of his death the instrument was not in his possession, but in possession of his oldest daughter. Ella Cason had this deed in her possession before she died. C. L. Cason never exercised any acts of ownership over this property after this deed was made. He tried to get his wife to sell this property, but she would not. Julia Cason Puckett signed this deed when she was 15 or 16 years old. She signed it because her father ordered her to do so. B. L. Cason was 36 years old, and he did not sign the deed. He was 12 or 13 years old on November 26, 1919. J. L. Cason was 36 years old, and he signed this deed. No notary or justice of the peace was present at the time he signed. He was 12 or 13 years old when he signed the paper. Plaintiffs introduced a deed from C. L. Cason to Ella Cason, dated December 2, 1901, conveying the land in dispute for the alleged consideration of $250 and love and affection. This deed was attested by a notary public of the state of Alabama. It was admitted by counsel for the defendant that there was no administration upon the estate of Ella Cason in Cobb county, Ga.
The defendant testified that she lived on the land in dispute from 1912 up to the December prior to the trial. She purchased it from C. L. Cason. She was to pay $200 down, and gave two notes for $100 each and one for $125. She paid these notes before they matured. When she paid...
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