Brown v. Brown

Supreme Court of Georgia

Brown v. Brown

16 S.E.2d 853, 192 Ga. 852, 1941 Ga. LEXIS 612

CourtSupreme Court of Georgia

DecidedSeptember 10, 1941

Docket13837.

StatusPublished

Cited by8 cases

This text of 16 S.E.2d 853 (Brown v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Brown, 16 S.E.2d 853, 192 Ga. 852, 1941 Ga. LEXIS 612 (Ga. 1941).

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Opinions

1. In every case of an escrow, the person to whom the deed is delivered must, by mutual consent, be constituted the agent of both parties. Wellborn v. Weaver, 17 Ga. 267, 275 (63 Am. D. 235). If he is made merely the agent or attorney of the grantor, there would be no escrow, and the instrument would be recoverable by the grantor, since the possession of the depository would remain merely that of the principal. Anderson v. Goodwin, 125 Ga. 663, 670 (54 S.E. 679), and cit.; 19 Am. Jur. 432, § 15. It is equally true that if he is made merely the agent or attorney of the grantee, there would be no escrow, since, if such attorneyship or agency be not such as to include the very subject-matter of obtaining the conveyance for the grantee, delivery to such an agent or attorney would be altogether futile, while, if the attorneyship or agency be such as to include the very matter of obtaining the conveyance for the grantee, the delivery to such a person would operate instantly to pass title into the principal, the same as if there were a delivery to the principal himself. Duncan v. Pope, 47 Ga. 445 (4), 451; Jordan v. Pollock, 14 Ga. 145 (2), 155; Anderson v. Goodwin, supra; Morgan v. Wolpert, 164 Ga. 462 (2) (139 S.E. 15); Dixon v. Bristol Savings Bank, 102 Ga. 461 (3), 469 (31 S.E. 96, 66 Am. St. R. 193), and cit.; 19 Am. Jur. 433, § 15. In all cases under a valid delivery in escrow, the deed takes its whole effect by force of the first *Page 853 delivery without any new delivery by the grantor. Wellborn v. Weaver, supra.

2. The plaintiff claims that title passed to her under a deed. A deed passes no title unless and until delivered. The deed admittedly has never been delivered to her in person. Nor under the preceding rules is it in any wise made to appear from the pleadings or the evidence that the deed has been delivered in escrow for her. By her petition she sets forth in effect that the deed had not been delivered, but remained in the possession of the defendant grantor or his attorneys. The only evidence in any wise tending to indicate a delivery in escrow was the evidence for the defendant, to the admission of which the plaintiff objected and excepted. Even this evidence, however, does not suggest delivery in escrow, since this witness, with whom the deed was left, testified that he was not to deliver it except upon direction so to do given by the grantor in the presence of the plaintiff. While the plaintiff claims that under the terms of the contemporaneous written contract the grantor husband had agreed that upon the happening of certain subsequent conditions, which have in fact happened, he would deliver the deed, and that under the facts as they exist it ought to be delivered, she has stricken from her petition the original prayer for specific performance, by which she might under the Code, § 37-1202, have had the title passed into her by decree. Under her petition as amended, she seeks, not to require that the title be put into her, but merely that the court decree that under an undelivered deed the title has already so vested. It follows that the jury were obliged to find, and did correctly find, that the land did not become the property of the wife upon the breach of the terms of the contract.

Judgment affirmed. All the Justicesconcur.

ON MOTION FOR REHEARING. 3. Even if it were assumed that the striking of the plaintiff's prayer for specific performance, as appears from the record, was not the act of the plaintiff herself, but is a typographical error in the record, and even if it were possible for this court to substitute the true fact in the case in lieu of the statement in the record, it would nevertheless be the rule that the verdict against her could not be disturbed, since the judge in the equity cause submitted to the jury only the question as to whether the land had actually "become the property of the plaintiff . . under the contract and her performance thereof." No question of specific performance having been submitted by the court, and no exception being taken to the failure to submit such a question, this court is limited to a determination of the issues and questions actually tried.

No. 13837. SEPTEMBER 10, 1941. REHEARING DENIED OCTOBER 14, 1941.

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1. In every case of an escrow, the person to whom the deed is delivered must, by mutual consent, be constituted the agent of both parties. Wellborn v. Weaver, 17 Ga. 267, 275 (63 Am. D. 235). If he is made merely the agent or attorney of the grantor, there would be no escrow, and the instrument would be recoverable by the grantor, since the possession of the depository would remain merely that of the principal. Anderson v. Goodwin, 125 Ga. 663, 670 (54 S.E. 679), and cit.; 19 Am. Jur. 432, § 15. It is equally true that if he is made merely the agent or attorney of the grantee, there would be no escrow, since, if such attorneyship or agency be not such as to include the very subject-matter of obtaining the conveyance for the grantee, delivery to such an agent or attorney would be altogether futile, while, if the attorneyship or agency be such as to include the very matter of obtaining the conveyance for the grantee, the delivery to such a person would operate instantly to pass title into the principal, the same as if there were a delivery to the principal himself. Duncan v. Pope, 47 Ga. 445 (4), 451; Jordan v. Pollock, 14 Ga. 145 (2), 155; Anderson v. Goodwin, supra; Morgan v. Wolpert, 164 Ga. 462 (2) (139 S.E. 15); Dixon v. Bristol Savings Bank, 102 Ga. 461 (3), 469 (31 S.E. 96, 66 Am. St. R. 193), and cit.; 19 Am. Jur. 433, § 15. In all cases under a valid delivery in escrow, the deed takes its whole effect by force of the first *Page 853 delivery without any new delivery by the grantor. Wellborn v. Weaver, supra.

2. The plaintiff claims that title passed to her under a deed. A deed passes no title unless and until delivered. The deed admittedly has never been delivered to her in person. Nor under the preceding rules is it in any wise made to appear from the pleadings or the evidence that the deed has been delivered in escrow for her. By her petition she sets forth in effect that the deed had not been delivered, but remained in the possession of the defendant grantor or his attorneys. The only evidence in any wise tending to indicate a delivery in escrow was the evidence for the defendant, to the admission of which the plaintiff objected and excepted. Even this evidence, however, does not suggest delivery in escrow, since this witness, with whom the deed was left, testified that he was not to deliver it except upon direction so to do given by the grantor in the presence of the plaintiff. While the plaintiff claims that under the terms of the contemporaneous written contract the grantor husband had agreed that upon the happening of certain subsequent conditions, which have in fact happened, he would deliver the deed, and that under the facts as they exist it ought to be delivered, she has stricken from her petition the original prayer for specific performance, by which she might under the Code, § 37-1202, have had the title passed into her by decree. Under her petition as amended, she seeks, not to require that the title be put into her, but merely that the court decree that under an undelivered deed the title has already so vested. It follows that the jury were obliged to find, and did correctly find, that the land did not become the property of the wife upon the breach of the terms of the contract.

Judgment affirmed. All the Justicesconcur.

ON MOTION FOR REHEARING. 3. Even if it were assumed that the striking of the plaintiff's prayer for specific performance, as appears from the record, was not the act of the plaintiff herself, but is a typographical error in the record, and even if it were possible for this court to substitute the true fact in the case in lieu of the statement in the record, it would nevertheless be the rule that the verdict against her could not be disturbed, since the judge in the equity cause submitted to the jury only the question as to whether the land had actually "become the property of the plaintiff . . under the contract and her performance thereof." No question of specific performance having been submitted by the court, and no exception being taken to the failure to submit such a question, this court is limited to a determination of the issues and questions actually tried.

No. 13837. SEPTEMBER 10, 1941. REHEARING DENIED OCTOBER 14, 1941.

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16 S.E.2d 853, 192 Ga. 852, 1941 Ga. LEXIS 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-ga-1941.

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