Lankford v. Holton

• Decision Date: 15 October 1938
• Docket Number: 12458,12463.
• Citation: 200 S.E. 243,187 Ga. 94
• Parties: LANKFORD et al. v. HOLTON et al. HOLTON et al. v. LANKFORD et al.
• Court: Georgia Supreme Court

200 S.E. 243

187 Ga. 94

LANKFORD et al. v. HOLTON et al.

HOLTON et al. v. LANKFORD et al.

Nos. 12458, 12463.

Supreme Court of Georgia

October 15, 1938

Rehearing Denied Nov. 19, 1938.

Error from Superior Court, Coffee County; W. R. Smith, Judge.

Proceeding by Mrs. R. T. Holton and others against M. L. Lankford and others for registration of title to four tracts of land wherein third parties intervened. To review a decree in favor of the petitioners subject to rights of interveners, the defendants bring error and the named petitioner brings error on adverse rulings on her demurrers and on her exceptions pendente lite.

Judgment reversed on main bill of exceptions and affirmed on cross-bill.

Where all parties at interest were before court, the fact that as to one tract of land one defendant sought registration of an undivided half interest and the other defendant registration of other half interest would not defeat their right to registration of such respective interests. Code 1933, §§ 60-203, 60-206.

Syllabus by the Court.

1. In applications for registration of title under the land-registration act, Ga.L.1917, p. 108, Code, § 60-101 et seq., as in cases of ejectment, the applicant must stand on the strength of his own title, and not on the weakness of that of his adversary.

2. The petitioner for registration in this case having failed to establish by evidence, and having at the hearing before the examiner disclaimed, any title by adverse possession under color of title, her right depends upon the validity and effect of the deeds abstracted in her petition.

3. The petitioner and the defendants all claiming under a common grantor, whose original title by deed and prescription was undisputed, and who in 1911 executed to the petitioner's predecessor in title a security deed, and the petitioner claiming as transferee of such deed with a sheriff's deed after its foreclosure, most of the questions here involved are controlled by the right of the defendants to attack such deed as usurious, and by its validity.

4. The security deed antedating the act of 1916 (Ga.L.1916, p. 48 Code, § 57-112), which relieved former penalties for usury the old law controls so as to render such deed void, if usurious. Civ.Code 1910, § 3442.

5. Under the former law, the grantee in a usurious security deed could not convey good title even to a bona fide purchaser.

6. Under the former law, while the defense of usury was a personal one, unavailable except to the borrower and his privies, where both parties claimed title under the borrower, and one claimed under an alleged usurious security deed, the other party, as a privy of the borrower, could attack such deed as void for usury.

7. Under the former law, one who claimed as a grantee from the borrower, under a conveyance executed after the security deed but before any judgment thereon, was not estopped or precluded from attacking the instrument as usurious by the fact that the lender or his assignee had, in a suit only against the borrower, obtained a judgment against him without a successful defense of usury.

(a) Nothing contained in the conveyances under which the defendants claimed in this case estopped or precluded the from attacking the security deed.

(b) Notice to the defendants as to the existence of the security deed, being immaterial under the rulings here made, would not estop or preclude them from attacking it.

(c) Nor would mere lapse of time so estop or preclude them, where they were in possession of the property.

8. A ground in a motion for new trial, excepting to admission of evidence, cannot be considered, where it fails to show that the objections urged were made at the proper time before the trial judge.

(a) The inhibition of the Code, § 38-1603, par. 1, against testimony as to transactions with deceased persons, applies only to suits instituted or defended by an immediate indorsee, assignee, or transferee of the deceased person.

(b) In order to disqualify a witness, under § 38-1603, par. 5, as an 'agent or attorney at law of the surviving party,' he must have been such 'at the time of the transaction testified about;' and in order to disqualify him, under par. 4 of that section, as 'a person interested in the result of the suit,' such interest must not be one of mere personal bias or near relationship, but based on some pecuniary value.

(c) Under the preceding rulings, the attack by the petitioner on the admissibility of testimony by the husband of one of the defendants is without merit, since there was no timely objection to such testimony on the ground urged, and since in any event the testimony was properly admitted.

9. Under the rulings stated in the opinion, the positive, unimpeached, and uncontradicted testimony of the husband could not be rejected by the examiner and the court.

10. The testimony of the husband, the grantor in the security deed in question, that a sum additional to the legal rate of interest was charged and was paid to the lender, clearly showed usury.

(a) Such testimony on cross-examination showed that usury was not only contracted for but paid. Furthermore, the subsequent compromise or settlement of the agreed usury for a less amount would not relieve the original transaction of the usury or validate the deed.

(b) Under the foregoing rulings and the uncontradicted evidence, the security deed being void, that instrument and the sheriff's deed thereunder afforded no basis for registration of title.

11. The land-registration act (Code, § 60-207), requiring that the title claimed by the applicant shall be pleaded, and the petition failing to plead deeds from a city marshal and a city to the petitioner, which were based on assessments for city improvements, and some of which were executed pending the suit, registration could not be founded on any title that might have been shown by such deeds.

(a) In the absence of evidence to show the validity of the assessments and proceedings and a compliance with the preliminaries essential to the validity of the sales by the city marshal, such proof was not supplied by the mere recitals in the deeds from the marshal or the city and the incidental papers.

(b) A deed from a city marshal or a city, based on a city assessment and execution for paving or like improvement of property, is a 'tax deed' within the meaning of the Code, § 60-202, so as to preclude a registration of title thereunder, unless, in compliance with that section, such instrument 'shall have been executed, delivered, and recorded more than seven years before the filing of the petition for registration.' Such a compliance was not shown in this case.

12. The defendants, showing title by more than seven years adverse possession under color of title, were under the evidence entitled to registration of such titles.

(a) The prayers of the defendants for registration of their titles, independently of the security deed, did not constitute prayers for 'affirmative equitable relief' from the deed without payment or tender of the amount lawfully due, in contravention of such rule under the former usury law.

(b) Under the former law, notice of the security deed, void according to the evidence, did not preclude the defendants from acquiring against it good prescriptive titles.

(c) The fact that one of the defendants owned an undivided half interest in one of the four tracts involved, and the other defendants owned the other half interest, would not defeat their right to registration of such respective interests, under the terms of the land-registration act. Code, §§ 60-203, 60-206.

13. Under the preceding holdings, while the court properly overruled the general demurrers to the defendants' answers and amendments, it erred in overruling their exceptions to the report of the examiner, and in entering decrees in favor of the petitioner and the intervenors claiming under her.

Mrs. Rilza T. Holton filed a petition to register the title to four tracts of land, numbered 1 to 4, inclusive, claiming title by seven years adverse possession under color of the deeds abstracted in the petition and under such deeds. These consisted of deeds to W. C. Lankford; a deed, dated November 7, 1911, from Lankford to B. H. Tanner, to secure a stated debt of $15,000 due January 1, 1917; assignments of that instrument by Tanner to a bank, and ultimately to the petitioner, with a deed from the administrators of Tanner's estate to her, made under a court decree to rectify defects in previous assignments; a deed of reconveyance for levy and sale, made in 1923 by the petitioner to Lankford; and a sheriff's deed, made in 1923 to the petitioner, reciting a judgment, levy, and sale of the property in 1923, under a suit by the petitioner against Lankford on the security deed and debt.

Mrs. Mattie L. Lankford, wife of W. C. Lankford, filed defenses, including an attack on the security deed as usurious and void; and claimed the right to registration of her title under a deed made in 1915, from W. C. Lankford to J. S. Lott, and under a bond for title made in 1920, from Lott to her, and under more than seven years adverse possession under these instruments. Her claim included all of the property claimed by the petitioner, except an undivided half interest in the tract numbered 4. H. L. Lankford, a brother of W. C. Lankford, and his heirs and the administrator of his estate after his death during the pendency of the suit, filed similar defenses and an additional defense based on suretyship. They claimed title in the heirs by adverse possession of an undivided half interest in tract 4 (the other half of which was claimed by Mrs. Lankford), under a deed thereto, made in 1913 by W. C. Lankford to H. L. Lankford.

General demurrers to the defendants'...