Toland v. Brewster

86 S.E. 1089, 144 Ga. 236, 1915 Ga. LEXIS 152

• Court: Supreme Court of Georgia
• Decided: November 11, 1915
• Status: Published

Opinion

Evans, P. J.

(After stating the foregoing facts.)

.1. The plaintiff is not entitled to have the alleged forged deeds canceled as a cloud upon his title, for the reason that the parties to the deeds are not parties to the action. But his petition will not be dismissed if he is entitled to prosecute the action to enjoin a destructive trespass on his property by an insolvent trespasser. It is alleged that the original defendant claimed title to the minerals by virtue of a deed from John C. Merritt, but that no such deed appears of record, and that in fact Merritt never had title to the mineral interest in the land. The plaintiff’s charge is that A. A. Camp is justifying his alleged trespass under authority from John 0. Merritt. If Merritt was empowered to enter on the land and remove the minerals, he could license Camp to do the same, and that license is not necessarily required to be given by a deed or written instrument. Gaston v. Gainesville &c. Railway Co., 120 Ga. 516 (4), 519 (48 S. E. 188).

The plaintiff is a purchaser from the Travelers Insurance Company, and has succeeded to the title of that corporation. The title of the insurance company, derived from Mrs. Lillie M. Camp, consists of a security deed and a deed to the equity of redémption. Mrs. Camp obtained her title from W. A. Camp, by a deed which contained this recital in the warranty clause: “Warrant as to everything except a certain deed to mineral interest in some of these lots I made to T. B. Bush sometime in December, 1889.” This deed was recorded, and the insurance company, when it took its deed to secure debt from Mrs. Lillie M. Camp, was affected with notice that Mrs. Camp’s grantor had previously conveyed the minerals in some of the lots to T. B. Bush in December, 1889. The records, of the clerk’s office of the superior court of Polk county show that on February 24, 1908, there was recorded a deed purporting to have been executed by W. A. Camp to T. B. Bush on December 4, 1889, to the mineral interest in the land, and on October 29, 1896, ihe're was recorded a deed purporting to have been executed by T. B. Bush to John C. Merritt, conveying the minerals in the-premises. Just here the question arises, how far is the plaintiff bound by the recital in the deed from W. A. Camp to Mrs. Lillie M. Camp that the former had conveyed to T. B. Bush the mjneral interest in some of the lots comprising the Hutchings farm, as affecting his right to attack as forgeries the recorded deeds from W. A. Camp to T. B. Bush and from T. B. Bush to John C. Merritt, purporting to convey the mineral interest in the land in controversy?

Becitals in deeds, except payment of the purchase-money, as against the grantor acting in his own right, and sui juris, and his privies in estate, in blood, and in law, constitute an estoppel. Civil Code (1910), § 5736. A grantee who accepts, a deed to the 'property granted is estopped -to deny the truth of a recital that the grantor had previously granted an easement or interest in the property to another person. Long v. Bullard, 59 Ga. 355; Setze v. First National Bank, 140 Ga. 603, 607 (79 S. E. 540). The estoppel upon the grantee in such case likewise binds the grantee’s privies in estate. Simms v. Freiherr, 100 Ga. 607 (28 S. E. 288). The recital in the deed from W. A. Camp to Lillie M. Camp estops the plaintiff from denying that W. A. Camp had previously conveyed to T. B. Bush the mineral interest in some of the lots. But estoppels are not generally favored, and an estoppel by a recital in a deed will not extend beyond the specific fact of the recital. The recital is that W. A. Camp had conveyed by deed the mineral interest in some, not all, of the lots composing the Hutchings farm, sometime in December, 1889. The plaintiff can not deny that fact; but when the defendant claims the minerals by virtue of a deed from Camp to Bush, and offers to confirm that right by virtue of a deed to the mineral interest in all the lots, the plaintiff may attack such deed as being different from that referred to in the recital. Hence the plaintiff will not be estopped from proving that the deeds from Camp to Bush and from Bush to Merritt are forgeries, for the purpose of illustrating that A. A. Camp has no title and is a trespasser.

2. It is further contended that the recital in the warranty clause of the deed from Mrs. Camp to the insurance company, conveying her equity of redemption, estops the plaintiff from denying that former owners had conveyed the mineral interest. This recital is too indefinite to operate as an estoppel against attacking any particular deed as a forgery. It is but a limitation on her warranty against prior conveyances. It specifies neither the extent of the mineral interest conveyed by former owners, nor the grantors or grantees of such conveyances. An estoppel by recital in a deed rests upon the postulate that it is hardly to be presumed that the parties intended that to be taken as true which is not in fact true; therefore, in order to create an estoppel, the recital in the deed must be specific. Lanison v. Wiggett, 10 C. B. 35.

3. The plaintiff’s action is projected on the theory that the defendant’s claim to the minerals is founded on a. forged and fraudulent title. If the plaintiff be not held back by any estoppel, then-he is entitled to enjoin a destructive trespass on his property by an insolvent defendant, whose sole reliance to do the act complained of is by license of a party whose deed is a forgery. In the plaintiff’s attack on the deeds as forgeries, the question of notice to him, as afforded by the various recitals and records of his remote grantor’s conveyance of tbe mineral interest is only pertinent as bearing on the issue of forgery which he makes by his pleading. He may object to an entry upon his land for the purpose of mining it by any one except those having a right superior to his own. His allegation is that the deeds to the mineral interest, which the original defendant relies on as title, are not genuine deeds from any person under whom he claims; and upon this basis he insists that the defendant’s status is that of a trespasser.

The defendant Toland was made a party at his own instance, on the allegation that he bought out the original defendant. He takes the case as he found it when he voluntarily became a party.

We have not discussed in detail some of the specifications of the demurrer, as the foregoing rulings control them.

Judgment affirmed.

All the Justices concur, except Beck, J., absent.