Phillips v. Adair

59 Ga. 370

• Court: Supreme Court of Georgia
• Decided: August 15, 1877
• Status: Published

Opinion

Jackson, Judge.

There were several claim cases tried together by Judge Hillyer as judge of law and facts without a jury. The claimants held title from the children of Solomon N ettles, under a deed of gift from Solomon to his wife, Mary, for life, remainder to the children. The plaintiff in fi. fa. sought to condemn the land as the property of Sasseen, under a deed from Solomon and Mary Nettles to him, the consideration being $2,800.00

The voluntary deed was duly recorded within a few days after its execution. The deed to Sasseen from Solomon and Mary Nettles was made- some years afterwards, and dated the 21st of August, 1862. A few days before, to-wit, on the 15th of August, Messrs. Ezzard and Collier obtained leave, on the application of Solomon and Mary, to sell the land, from Judge Pull, at chambers, to which proceeding the children were not parties; and the same gentlemen, Messrs. Collier and Ezzard, were witnesses to the deed from Solomon and Mary Nettles to Sasseen. The petition for leave to sell set out the character and limitations of the deed of gift.

The claimants held under the children after the death of the mother. The pplaintifE in fi. fa. had the land levied upDon as the property of Sasseen, and stood on Sasseen’s title. Judge Hillyer held that the claimants had the better title, and the pfiaintiff in fi. fa. excepjted. The question turns on whether Sasseen had notice or not of the voluntary conveyance by Nettles to his wife for life, and children in remainder- — for there is no pretence of fraud in the gift when made.

1, 2.' The Code, section 2632, declares that a voluntary conveyance shall be void as against a subsequent bona fide purchaser, for value, without actual notice. Did Sasseen have actual notice, or its equivalent? The judge found, from the facts, that he had. We cannot say that he found wrong. His finding on the facts is entitled to the same respaect as that of a jury, and the facts here would authorize the jury to find the equivalent of actual notice, if not actual notice itself. The facts that Sasseen took the deed from Solomon and Mary Nettles, that, a few days before, an order to sell, in which proceeding the deed to the children in remainder was fully set out, was had, that this proceeding was conducted by Messrs. Ezzard and Collier, as attorneys and counsel, that Messrs. Ezzard and Collier witnessed the deed from Solomon and Mary to Sasseen but a few days thereafter, are enough to bring any reasoning mind to con-elude that Sasseen had full knowledge of the voluntary deed, that the proceeding was instituted on purpose to sell to him, and that he, in all probability, instituted the whole business, and had actual notice of the deed.

However that may be, certainly these facts authorize the clear and satisfactory conclusion that he had knowledge of this prior deed and all about it, or would have had it if he had not failed to ask Solomon or Mary Nettles, or Ezzard or Collier, about it, and thus wilfully failed to enlighten himself, when light was all around him; and thus his conscience is affected by this knowledge or wilful failure to inquire.

The principle settled in 14 Ga., 158, it seems to us, covers the law as applied to these facts. If the .judge had been trying the case before a jury, and had put the law of actual' notice or its equivalent — the knowledge of such facts as would put a reasonable man upon inquiry and charge his conscience to inquire — before the jury, and they had found the issue against Sasseen, we think that the evidence here would have authorized the finding. So, when the parties make him a jury, and he finds the facts sufficient to charge Sasseen with a conscientious duty to inquire about theypurchase he was making, we will apply the same rule to him, and hold that he was authorized to find, if not actual notice of the deed, such knowledge about it as was tantamount to actual notice — as made it a conscientious duty on his part to inquire further. Four people were present when the deed was made who could tell him all about the prior deed: two, the makers of the deed to him; the other two, the witnesses, and these witnesses lawyers, who knew all about such business, who probably drew the deed from them to him, and of whom it was so natural that he should inquire. The fact must have been that he did inquire, that they did tell him about it, and that he thought he was getting a good title by virtue of the proceedings before Judge Bull against the children, and was making a good bargain, like the purchaser in Jordan et al., vs. Pollock,, 14 Ga., 145-158, before cited.

' Under this view of the law of this case and facts, as found and authorized to be found by the judge who tried it on law and facts, the entire case is disposed of, and it becomes unnecessary to consider the other questions made in the record. We therefore affirm the judgment in all the cases. It is scarcely necessary to add that the proceedings before Judge Bull, at chambers, we think, wore proper to be considered as evidence in the cases.

Judgment affirmed.