Beard v. White

48 S.E. 400, 120 Ga. 1018, 1904 Ga. LEXIS 783

Opinion

Lamar, J.

(After stating the foregoing fact.) 1, 2. Under the practice obtaining in this State, special pleadings and replications are not ordinarily allowed. There is an exception in those cases where the defendant, by set-off or cross-bill, seeks affirmative relief against the plaintiff. In order that the record may show what is the issue and make the judgment available on a plea of res adjudicata, the court may in such cases require the plaintiff to meet these claims by appropriate written pleadings. But where the defendant makes no motion on the subject, he can not, after the case has been submitted to the jury, take advantage of the plaintiff’s failure to file such responsive pleadings; nor will the plaintiff’s silence be treated as an admission of the truth of the 'allegations in the defendant’s cross-bill, plea of set-off, or like answer. Civil Code, §§ 5050, 4840, 4995, 5067, 5063. This rule is particularly applicable where, as in the present case, the affirmative matter is set up by way of amendment to the defendant’s answer. Hudson v. Hudson, 119 Ga. 637 (3, 4).

3-6. The parties claimed under a common grantor. The defendant was his heir at law and in possession. The plaintiff was his grantee, and made out a prima facie case when she introduced in evidence the deed whereby he conveyed to her the premises in dispute. Even if under the Civil Code, § 5272, the defendant was a competent witness to the fact, or her evidence was sufficient to show that there had been adultery between the grantor and the grantee, the result would not have been different. For while illegal executory contracts are void, it is equally true that contracts based on considerations immoral will not be disturbed where they have been fully or voluntarily executed. The parties being in pari delicto, the courts will not disturb the rights of either at the instance of the other. If, for an adulterous consideration, Beard had contracted to pay White money or convey laud, the courts would decline to enforce such contract, because of the mutual turpitude of the parties. But if he actually paid the money or actually delivered the deed, divesting himself of title and vesting it in her, the courts will remain equally passive. The parties will be left where they have placed themselves. The courts will no more set aside the executed agreement that they will enforce an executory contract. It is a necessary corollary of this principle that the heir can not recover if the interstate was bound by the deed. The wife was in privity with her husband. She succeeded only to what he left. If he had no title, neither did she inherit any by his death.

In Georgia there is no livery of seisin. Possession is not necessary to the acquisition of title to land. Title goes out of the grantor and into the grantee at the moment of the delivery of the deed. The contract is thereby fully executed; and- .had Beard himself been the defendant in this action of ejectment, be would hav.e been estopped by his own act in signing, sealing, and delivering a deed reciting a valuable consideration, and expressly putting title oud of himself into another. In many of the cases involving a similar question, there had in fact been an actual change of possession. In some it seems to have been held that such a change was necessary in order to make the contract executed. But this question is concluded for us by authorities directly in point. Overruling the decision by two judges in Harrison v. Hatcher, 44 Ga, 638 (2), it was held, in Parrott v. Baker, 82 Ga. 373, that “both upon principle and authority, the fraudulent maker of such instruments is bound by them according to their terms, irrespective both of any actual payment of a consideration, or any contemporary or subsequent change of possession. . . The title passes as completely, so far as the parties to the conveyance are concerned, where the possession is retained as where it is delivered. . . It is a mistake — a wide mistake — to regard an action of ejectment or complaint for land as a call upon the court to enforce the fraudulent deed as a contract. The law, taking the parties at their word and acting upon the deed as pure, has already executed it as a contract and transmuted it into title. The court is called upon to do nothing in behalf of the plaintiff to recover the land, but that which it does for every plaintiff who comes armed with complete title to recover possession of his property.” Parrott v. Baker, 82 Ga. 373, 374. A deed to defraud creditors, or based upon an immoral consideration, may be void as against creditors, or when used as a basis for evicting persons not. in privity with the grantor, but, according to the express ruling in Watkins v. Nugen, 118 Ga. 375 (6), “the courts will not set aside such a conveyance after it is executed, at the instance of the grantor or any one in privity with him.” If they will not do this directly, by cancellation 'or rescission, neither will they do so indirectly by refusing to give the deed its proper effect when offered as evidence of a right to recover in an action of ejectment. The case may be a hard one for the widow. But she stands in no better position than her husband, who had conveyed the land and divested himself of any interest therein. There was nothing left which could descend. In view of this fact, the plaintiff was bound to recover. „If she was an incompetent witness, the facts testified to by her were proved by a subscribing witness. If the immoral consideration be treated as out of the case, there was nothing to contradict the testimony that the consideration, valued at five hundred dollars, had been paid in care, nursing, board, and medical expenses. The verdict was demanded.

Judgment affirmed.

All the Justices concur.