Martin v. White

• Decision Date: 18 July 1902
• Citation: 42 S.E. 279,115 Ga. 866
• Parties: MARTIN v. WHITE.
• Court: Georgia Supreme Court

42 S.E. 279

115 Ga. 866

MARTIN v. WHITE.

Supreme Court of Georgia

July 18, 1902

Syllabus by the Court.

1. A conveyance which expresses as a consideration a sum of money or any other thing which the law deems valuable, no matter how small the sum or the value may be, cannot be said as a matter of law to be a voluntary conveyance.

2. A conveyance which expresses, as a consideration, love and affection and a small sum of money, is not upon its face voluntary.

3. The consideration of a deed may be always inquired into when the principles of justice require it.

4. Whether a deed which expresses as a consideration love and affection and a small sum of money is a voluntary conveyance depends upon the intention of the parties, and this intention is to be ascertained by an inquiry into all the facts and circumstances, at the time of its execution, which will throw light upon the question as to whether the deed was executed as the consummation of a sale or as the evidence of a gift.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by Isham White against M. C. Martin. Judgment for plaintiff. Defendant brings error. Reversed.

C. T Ladson, for plaintiff in error.

Green & McKinney, for defendant in error.

COBB J.

This was an action of complaint for land. The plaintiff derived title through a deed from his father, dated June 10, 1875 and duly recorded. This deed recited that the grantor conveyed the land described, "for and in consideration of the sum of five dollars, and love and affection he bears for his said wife and children." The defendant's title was derived through a deed from the plaintiff's father to Nancy E. Moore, dated February 7, 1883, recorded June 22, 1883, which recited a consideration of $700, and a deed from Nancy E. Moore to the defendant, dated June 3, 1886, recorded August 3, 1886, which recited a consideration of $500. The defendant offered Nancy E. Moore as a witness to prove that she bought the land in controversy from the plaintiff's father on the date mentioned in the deed above referred to, paying him therefor the sum of $700; that she had no knowledge whatever of the existence of the deed under which the plaintiff claimed; and that she had sold the land in controversy to the defendant. This evidence was objected to as irrelevant, and the court excluded the same. The defendant offered an amendment to his answer, alleging that, at the date of the deed under which the plaintiff claimed, the property conveyed thereby was worth the sum of $500. Upon objection by the plaintiff, the court refused to allow the amendment. The defendant offered to prove, by a witness who was familiar with the land in controversy, that, on the date of the execution of the deed under which the plaintiff claims, the property was worth $500. To the introduction of this evidence, the plaintiff objected, and the evidence was excluded as irrelevant. The court then directed a verdict in favor of the plaintiff. All of the rulings above referred to are assigned as error.

It is the settled law of this state that a voluntary conveyance is not within the operation of the laws providing for the registry of deeds, and that, therefore, the recording of such a conveyance is not notice to a subsequent purchaser for value. See Finch v. Woods, 113 Ga. 996, 39 S.E. 418, and cases cited. The controlling questions in the present case are whether a deed which recites a consideration of $5 and love and affection is upon its face a voluntary conveyance; and, if not, if the same be shown to be a deed from father to son, and the money consideration is a trifling amount compared with the value of the land, whether, as against a subsequent purchaser from the father, for value, and without notice of the prior deed, it should be held to be a voluntary conveyance, and therefore not within the protection of the registry laws.

As between the grantor and the grantee, in the absence of fraud any sum paid or contracted to be paid is a sufficient consideration to make the conveyance valid. Hence it has been held that a consideration of $1 is sufficient to support a quitclaim deed, and that this is true whether the money be actually paid or not, as, if not paid, it may be recovered by action. Nathans v. Arkwright, 66 Ga. 179. Mere inadequacy of consideration, in the absence of fraud, will never invalidate a conveyance by a grantor who is competent to contract. While a conveyance based on a grossly inadequate consideration will pass the title from the grantor to the grantee, and, as between the parties to the deed, the grantee will be treated as having purchased for a valuable consideration, under what circumstances, if any, can such a conveyance be treated as voluntary as against creditors of the grantor or subsequent purchasers from him who had no actual notice of the existence of the conveyance? What is a voluntary deed? Mr. Bump says: "A voluntary conveyance is a conveyance without any valuable consideration. The adequacy of the consideration does not enter into the question. The character of purchase or voluntary is determined by the fact whether anything valuable passes between the debtor and the grantee as a consideration for the transfer. If there is a valuable consideration, no matter how trivial or inadequate, the conveyance is not voluntary." Bump, Fraud. Conv. (4th Ed., Gray) § 238. The supreme court of Connecticut defined a voluntary conveyance to be one that is wholly without a valuable consideration. Washband v. Washband, 27 Conn. 424. The supreme court of Pennsylvania held that a conveyance by a father to his daughter for a consideration of $1 actually paid, and natural love and affection, is not a voluntary conveyance. Appeal of Ferguson (Pa.) 11 A. 885. Mr. Jones, in his work on Real Property, says: "A voluntary conveyance is one wholly without a valuable consideration, or for a valuable consideration which is merely a nominal one." Volume 1, § 288. In Ward v. Trotter, 3 T. B. Mon. 1, it was held that a consideration of $1 in a deed of trust would be treated, as against creditors, as nominal only; Mr. Chief Justice Boyle saying in the opinion: "We ascribe no importance to the consideration of one dollar mentioned in the deed. That would indeed be sufficient to pass the legal title as against the grantor, but as against creditors and purchasers it would, were it the only consideration, be deemed merely nominal, and the deed of course would be voluntary, and consequently fraudulent and void as to them. In Houston v. Blackman, 66 Ala. 559, 41 Am.Rep. 756, the supreme court of Alabama held that, as against existing creditors, a deed from husband to wife in consideration of love and affection and $1 was voluntary. In McKeown v. Allen, 37 Fla. 490, 20 So. 556, it is said that the general rule is that a deed with a consideration merely nominal will be considered voluntary as against existing creditors of the grantor. See, also, Worthington v. Bullitt, 6 Md. 172; Scoggin v. Schloath, 15 Or. 380, 15 P. 635; Worthy v. Caddell, 76 N.C. 82; Ridgeway v. Ogden, 4 Wash. C. C. 139, Fed. Cas. No. 11,814; 2 Devl. Deeds (2d Ed.) § 814; Notes to Hagerman v. Buchanan, 14 Am.St.Rep. 739 (s. c. [ N. J. Err. & App.] 17 A. 946). In ...