Horton v. Murden

• Decision Date: 07 February 1903
• Citation: 43 S.E. 786,117 Ga. 72
• Parties: HORTON et al. v. MURDEN.
• Court: Georgia Supreme Court

43 S.E. 786

117 Ga. 72

HORTON et al.

v.MURDEN.

Supreme Court of Georgia.

Feb. 7, 1903.

DEEDS — EXECUTION — SIGNATURE—DESCRIPTION — MORTGAGE — POSSESSION BY MORTGAGEE — TRESPASS — TITLE TO MAINTAIN — PLEADING.

1. Signature includes mark, even though the mark is not between the given name and the surname. Hence, if otherwise sufficiently proved, an instrument reciting that "I, Julie Reynolds sign my hand to it X here, " is sufficiently signed, within the meaning of the Code.

2. There must be proper words used in order to convey title to land or to create a lien thereon. In Georgia, where no particular form is required in a deed or mortgage, it is not necessary to use "grant, " "bargain, " or other technical words; but any language showing an intent to convey or mortgage is sufficient.

3. An instrument dated, "Atlanta, Ga., Sept. 15, 1876, " and in its body describing certain real estate as "my lot 50 front of Fortune street, running back 155 feet, " bounded north by X and south by Y, is not void for uncertainty of description, inasmuch as it may be aided by parol. Prima facie, the street named will be referred to the locality named in the caption or date line of the instrument.

4. An instrument reciting that A. and his wife advanced money for B. to keep her (B.'s) land from sale, and that B. turned over "in the hands of" A. her "two deeds and lot, * * * and as it now stands * * * until I [B.] redeem it in the year 1879, * * * if I [B.] don't redeem it at that date you [A.] * * * can sell it, or do just as you please, " and further stating that this would cover a certain named debt, is a mortgage, and of itself cannot be the basis of a recovery in ejectment.

5. Under Civ. Code 1895, § 2734, a mortgage will ripen into title if the mortgagee remains in possession for 10 years without recognition of any right in the mortgagor to redeem. After such possession the law will presume a sale of the equity of redemption, either under foreclosure proceedings or by the act of the parties.

6. Prior possession is some evidence of title, and sufficient as a basis for recovery of possession as against a trespasser.

7. Ordinarily, it is not necessary to anticipate the defense, and where the plaintiff relies on possession he need not aver that defendant is a trespasser; but evidence of prior possession alone is sufficient to put the defendant on proof that he has a better title than the plaintiff.

8. Whether the plaintiffs had a prior possession, or were tenants at will, or were in under the mortgage, and whether the mortgage had ripened into title or not, there was a sufficient allegation as to possession to entitle the plaintiffs to recover as against the defendant unless he showed a better title than plaintiffs.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Action by David Horton and others against Warren Murden. Judgment for defendant, and plaintiffs bring error. Reversed.

Robt. L. Rodgers, for plaintiffs in error.

Culberson, Willingham & Johnson, for defendant in error.

LAMAR, J. 1. Neither the name nor the mark of the maker was at the end of the instrument, nor in immediate proximity to each other, and the defendant insisted that the paper was not signed. It was admitted that the signature need not necessarily be at the end of the instrument, section 3599 of the Civil Code of 1S95 not requiring that deeds should be subscribed, but only signed. If a conveyance with the name at the beginning or in the body of the instrument, or after the attestation clause (Huff v. Huff, 41 Ga. 696), could be treated as signed, the same result would follow where the grantor was an illiterate, and obliged to use a mark, because, under section 5 of the Political Code of 1895, "signature includes mark, " and the mark may be placed wherever the ordinary signature could be. If the grantor's name clearly appears in the body of the instrument, if she adopted it as her act and deed, and affixed her mark at any place thereon with the purpose of giving it such force and effect, the law will not defeat her intent, and declare the instrument inoperative, merely because the mark and the name are not in juxtaposition. In the case of Devereux v. McMahon, 108 N. C. 134, 12 S. E. 902, 12 L. R. A. 205, the attestation and signature were as follows: "In witness whereof, the said Thomas Alexander hath hereunto signed his name and affixed his seal the day and date above written. X [Seal.]"; and it was held that this constituted a sufficient signature, and might be considered as an adoption of the name in the body of the instrument. See Gillis v. Gillis, 96 Ga. 10, 23 S. E. 107, 30 L. R. A 143, 51 Am. St. Rep. 121; Cox v. Montford, 66 Ga. 62.

2. On general principles, and on the authority of Webb v. Mullins, 78 Ala. 111, the defendant Insisted that the instrument was void for all purposes, because of the absence of words indicating an intention to convey the land. The provisions in Civ. Code 1895, §§ 3602, 2724, that no particular form is required to make valid a deed or mortgage, do not dispense with the necessity of using language indicating an intention to transfer title or to create a lien. Hence, in Doggett v. Simms, 79 Ga. 257, 4 S. E. 909, where, though recorded as a deed, the papers were unilateral, and recited that W. had no title to the land described, but that the same remained in S., it was held that these recitals did not convey title or relinquish any interest in the land, but merely "spoke in the air." "Sign over" the land was held to be insufficient to convey title in McKinney v. Settles, 31 Mo. 541, where other recitals in the instrument showed that a deed for the land was to be subsequently executed. An assignment of the deed itself may transfer the instrument, but it does not convey any interest in the land therein described. Henry v. McAllister, 93 Ga. 667, 20 S. E. 66; Bent-ley's Heirs' Lessee v. Deforest, 2 Ohio, 221, 15 Am. Dec. 546. There must always appear on the face of the instrument enough to indicate an intention to convey an interest in the property described. But while proper words are necessary, "grant, " "bargain, " "sell, " and other technical expressions need not be used. "To go" to the remaindermen was held to be sufficient in Folk v. Varn, 9 Rich. Eq. 310. In Allgood v. State, 87 Ga. 668, 13 S. E. 569, the usual formal words of conveyance were wanting, but a considera-tion was expressed, a covenant of warranty was inserted, and this was held to pass title, if genuine, and, if spurious, sufficient as the basis of a prosecution for forgery.

3. The land was referred to as "my lot 50 front of Fortune street, running back 155 feet, joining on the North side by Murden and on the South side by Horton." The state, county, and city in which the lot is located were not referred to, and the defendant claims that the instrument is void for want of a description of the property intended to be conveyed. The paper is dated, "Atlanta, Ga., Sept. 15, 1876,...