Glover v. Cox

73 S.E. 1068, 137 Ga. 684, 1912 Ga. LEXIS 125

• Court: Supreme Court of Georgia
• Decided: February 14, 1912
• Status: Published

Opinion

Evans, P. J.

(After stating the foregoing facts.)

1. The correct name of the corporation which loaned the money and to which the deed to secure the loan was made is the National Building Association of Baltimore City. It appeared in its true name in the pleadings filed by itself and its trustees in which the judgment was rendered. The verdict and judgment is in favor of the “trustees for the said National Building and Loan Association of Baltimore.” In her petition the plaintiff alleges the sheriffs sale and deed to be void, “because there is no judgment in Fulton superior court against petitioner in favor of W. E. Dimmock and M. McDonald Pritchard, trustees for National Building and Loan Association of Baltimore.” If this allegation is to be taken literally, it is disproved by the record. If it is to be taken as an allegation that the variance in the corporate name between the judgment and the pleadings is of such vital nature that the judgment is void, it becomes necessary to inquire into the legal sufficiency of the attack made on it. The judgment followed the verdict. “Verdicts must have a liberal construction, and should be construed so as to stand if practicable; and the judge may examine the entire pleadings, the admissions in the answer, and all the undisputed facts, in making a final decree.” Mayor &c. of Macon v. Harris, 75 Ga. 761. There can be no doubt that the National Building and Loan Association of Baltimore, referred to in the verdict, is the corporation which was a party to the case, and the correct name of which appeared in the pleadings as the National Building Association of Baltimore City. The misnomer of the corporation in the verdict and judgment is not so radically different as to indicate that an entirely different corporation was intended. The plaintiff is estopped from complaining of this irregularity. After the sale of the land, she filed a proceeding to set aside this verdict and judgment, and her petition was dismissed on general demurrer. Although she did not raise this particular objection, she is just as much estopped by the judgment as if she had made the point. It is not permissible for a party who has several grounds of attack on a judgment to file successive actions on each ground to vacate the judgment. The defect was an amendable one; and the defendant in the judgment, having litigated with the plaintiffs as to the validity of the judgment, should have raised this objection, and, failing to do so, she will be thereafter estopped. Bradford v. Water Lot Company, 58 Ga. 280 (3); Mitchell v. Toole, 63 Ga. 93.

2. It is alleged that the levy and sale are void, because the deed filed for levy and sale recites that it was filed for the purpose of having a fi. fa. in favor of National Building Association of Baltimore City levied on the property, and for no other purpose, and that the variance in the name of the plaintiff in the sheriff’s deed and the judgment and execution is a fatal defect. This variance between the recital of the name of the plaintiff in the sheriff’s deed and in the fi. fa. does not render the deed void. It is said in 3 Freeman on Executions, § 329: “While the recital of the several facts upon which the officer’s authority to convey depends is not indispensable, yet it is usually made or attempted in each deed. ‘The attempt frequently results in mistakes. The name of one of the parties, the date of some of the facts, or the amount of the execution or of the sale may be incorrectly stated. But if the recital is unnecessary, the fact that it is either imperfectly or incorrectly made can be of no consequence.” See also 3 Devlin on Beal Estate, § 1430. Certainly the misrecital of the name of a plaintiff in the judgment does not vitiate the deed if the identity is made clear. Loomis v. Biley, 24 Ill. 307; Union Bank v. McWhorters, 52 Mo. 34. In the case of Wilson v. Campbell, 33 Ala. 249 (70 Am. D. 586), a judgment was entered in favor of the Branch Bank at Mobile as plaintiff, and the execution followed the judgment. In the sheriff’s deed the execution was recited as having issued in favor of the “ Branch of the Bank of the State of Alabama at Mobile,” and the court held that the deed was not rendered invalid because of the variance between the judgment and execution under which the sale was made and the recitals thereof in the deed. In the case in hand the reference in the sheriff’s deed to the execution under which the sale was made is so clear that no confusion can result from the misrecital, and the deed is not void on this account. See White v. Forsyth, 136 Ga. 634 (71 S. E. 1073).

3. The sheriff’s sale is alleged to be void, because the deed from the plaintiff to the defendant, filed for the purpose of levy and sale, was not properly attested for record. As will be seen from the statement of facts, Laura Glover had borrowed money from the National Building Association of Baltimore City, and had secured the loan by deed to W. B. Dimmoek- and M. McDonald Pritchard as trustees for the association. Under the statute the grantee or lender must sue his debt to judgment, then execute a quitclaim deed to the grantor or borrower, and when this deed is filed and recorded the execution issued upon the judgment may be levied on the land. A levy and sale made without filing and recording the deed is void. Gammon v. Benedict, 122 Ga. 412 (50 S. E. 162). So that it becomes necessary to inquire into the legality of the record of the deed made by the trustees of the National Building Association of Baltimore City for the purpose of levy and sale. The caption of the deed is “Georgia, Pulton County.” It is made “between M. McDonald Pritchard and W. B. Dimmoek as trustees of the National Building Association of Baltimore City, parties of the first part, and Laura Glover of the second part.” It contains this clause: “Whereas the said National Building Association of Baltimore City, on the 15th of March, A. D. 1900, recovered judgment against the said Laura Glover for the sum of $1,743.80, upon which execution has issued, and whereas the said execution is a special lien upon the above-described property, now, therefore, in accordance with the Code of Georgia of 1895, section 2771, have parties of the first part executed this deed for the purpose of having said execution levied upon said property, and having it sold thereunder in satisfaction thereof, and for no other purpose whatsoever.” It is signed and attested as follows:

“In witness whereof the parties of the first part have hereunto set their hands and fixed their seals the day and year above written.

“M. McDonald Pritchard, Trustee. W. B. Dimmoclc, Trustee.

“Signed, sealed, and delivered in presence of:

“Bobert Ogle, Clerk Superior Court of Baltimore City, the same being a court of record [Seal]. Peter Stevens.

“As to Dimmoek. J. B. Fox; J. H. Porter, N. P. Fulton Co., Ga.”

The recording acts only authorize the clerk of the superior court to record such papers as are entitled to record and which have been attested in manner and form as the statute prescribes. The registry of a deed serves a dual function; it is constructive, notice of the existence of the original deed and permits its reception in evidence without proof of its execution. Our recording statutes provide that “in order to authorize the record of a deed to realty or personalty, if executed in this State, it must be attested by a judge of a court of record of this State, or a justice of the peace or notary public,” etc. Civil Code (1910), § 4202. “To authorize the record of 'aS deed to realty or personalty, when executed orrt of this State, the deed must be attested by or acknowledged before a commissioner of deeds for the State of Georgia, . . or by a judge of a court of record in the State where executed, . . or by a clerk of a court of record under the seal of the court,” etc. Civil Code (1910), § 4203. Unless a deed shows on its face that it is entitled to record, the clerk should not record it. In the absence of a recital in a deed that it was executed elsewhere, the presumption is that the situs of its execution was .the place named in the caption; and unless it appears from the face of the paper that the officer by whom it was officially attested was without the territorial limits of his official jurisdiction in attesting the same, it will be presumed prima facie that he was acting within his jurisdiction. Rowe v. Spencer, 132 Ga. 426 (64 S. E. 468). But if the attesting official describes himself as an official of a county different from that stated in the caption, the prima facie presumption is that the deed was executed at the place named in the caption and attested by an official of the county which he describes himself to be; and if that official has no authority to attest deeds in the venue of the caption, the deed can not properly be recorded. Allgood v. State, 87 Ga. 668 (13 S. E. 569). Every presumption which the law may indulge from the maxim, omnia prsesumuntux solemniter esse acta, may be invoked in favor of the inference that the deed was executed within the attesting official’s jurisdiction, where the deed does not bear evidence to the contrary. In the case of a deed executed by one person the application of the forgeoing rules is attended with less difficulty than where there are several signers. In the ease at bar the caption of the deed was “Georgia, Fulton County.” As to one of the signers it was attested by an official of that county, and as to this signer there can be no doubt that the deed was properly executed for record. As to the other signer the deed does not disclose his residence, but does bear internal evidence that he is the trustee of a corporation of Baltimore City and is making the deed in its behalf. This at least affords some ground for assuming that the trustee in the performance of a corporate act was at the place of business of the corporation. Indeed, were it not for the presumption to be drawn from the situs of the caption and the official jurisdiction of the attesting magistrate to one of the signers, we might assume that both trustees in the performance of a corporate act were discharging corporate functions at the home of the corporation. One fact apparent from the double attestation is that the deed was not signed coineidently by the two trustees. And is not this sufficient, in connection with the fact that the other trustee was performing a corporate act for a corporation of Baltimore City and went before a clerk of a court of record of Baltimore City to have his signature attested, to justify the inference that one trustee signed the deed in Fulton county, Georgia, and the other signed it at Baltimore City? We think so. In drawing this conclusion we do not put tlie recital of the situs in the caption in opposition to the recital of the jurisdiction of the attesting official. On the other hand, we give effect to both by holding that the recital of the situs in the caption and the recital in the signature of the magistrate who attested Dimmock’s signature that he was an official of the same county indicates that the deed was executed in Fulton county, Georgia, by Dimmock; and the other circumstances t.o which we have adverted indicate that the other signer, Pritchard, executed the deed at Baltimore City. Courts will always construe an official document or official act so as to give effect to it, if it can be done consistently with the act and the rules of construction. The point is not that the public or the person interested is concluded by the inference, because aliunde evidence is allowable to show that the deed was not properly attested for record; but whether the deed bears on its face facts authorizing the inference that it was properly executed for record. We deem it a fair presumption that the deed was not executed simultaneously by the two signers; that it was executed by Dimmock in Fulton county, Georgia, and by. Pritchard at Baltimore City, and that it was entitled to record.

The foregoing rulings make it unnecessary to decide the other points raised in the record. '

Judgment affirmed on the main hill of exceptions; cross-hill dismissed.

All the Justices concur, except Hill, J., not presiding.