Toole v. Toole

33 S.E. 686, 107 Ga. 472, 1899 Ga. LEXIS 97

• Court: Supreme Court of Georgia
• Decided: May 29, 1899
• Status: Published

Opinion

Simmons, O. J.

The deed made by Dr. Toole to his first wife and children, assuming that it was delivered, conveyed all the title and interest he had in the land, and was a good and binding deed as between him and them, although it had but one witness and was unrecorded. Howard v. Russell, 104 Ga. 230. As he had thus parted with all title he had to this land, the voluntary deed which he subsequently made to his second wife conveyed no title to her, unless voluntary deeds, when in competition with each other, are governed by the provisions of the registry acts. If these acts are applicable to the present case, the law would put the title in the second grantee whose deed was recorded, on the ground that the grantees in the first deed failed to record their deed. All the authorities, however, which we have read on the subject, declare that the purpose of the registry acts, relatively to the .question in hand, is to protect bona fide purchasers for value. None of them, as far as we can find, has ever held that they were designed to protect the holder of a junior voluntary deed, though the same be duly recorded. There are three sections of our Civil Code bearing upon this subject, as follows:

“§2778. Deeds, mortgages, and liens of all kinds, which are now required by law to be recorded in the office of the clerk of the superior court of each county within a specified time, shall, as against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property, take effect only from the time they are filed for record in the clerk’s office.

“ § 3530. Every voluntary deed or conveyance made by any person shall Be void as against subsequent bona fide purchaser for value, without notice of such voluntary conveyance.

“ § 3618. Every deed conveying lands shall be recorded in the office of the clerk of the superior court of the county where tjhe land lies. The record may be made at any time, but such deed loses its priority over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first.”

It is contended by counsel for plaintiff in error, that these sections are broad enough to protect grantees under voluntary deeds, because two of them declare in substance that all deeds must be recorded. It will be observed, however, that in the latter part of section 3618, where it provides a penalty for failing to record the first deed, it is declared that “such deed loses its priority over a subsequent recorded deed from the same vendor.” The word “vendor” was evidently used with reference to a deed bf bargain and sale, based upon a valuable consideration. If it had been intended to include voluntary deeds, the word “grantor,” and not “vendor,” would have been used. We are strengthened in this view by the phraseology of section 3530, which makes every voluntary deed void as against subsequent bona fide purchasers for value, without notice of the voluntary deed. The expression of one thing excludes the other, and limiting the beneficial purpose of this section to subsequent purchasers for value excludes grantees under a subsequent voluntary deed to the same property. Section 2778 does not conflict with this idea. While it is as broad as section 3618 as to recording every deed, it protects only third parties, acting in good faith and without notice, who may have acquired a transfer or lien binding the same property. This, in our opinion, means that this third party must have acquired the transfer or lien for value and without notice. This section was not dealing with voluntary deeds but left their status as it was at the time of the enactment of the statute from which this section has been codified. Construing' all these sections together, we are of the opinion that they do not apply to a case involving a contest between two voluntary deeds, the older not recorded and the younger duly recorded. The holder of the latter does not occupy the position of a bona fide purchaser; and so far as we have been able to ascertain, this view is in harmony with all the text-books and decisions of this country. Webb, in his work on Record of Title, § 204, says: “The purchaser protected under the recording acts must be one who acquired his right for a valuable consideration. If he be a mere volunteer whose title has been derived by gift, inheritance, devise, or some kindred mode, he does not come within the term purchaser as used in these statutes.” In 20 Am. & Eng. Enc. L. 590, it is said: “The recording acts were intended for the protection of those who should part with something of value, or suffer some loss, by reason of having acted upon the faith of a conveyance and in ignorance of some prior transaction which, in the absence of the operation of these provisions, would defeat the intended acquisition of some new interest. It is necessary that the subsequent purchaser, in order to be entitled to the protection of the recording acts, obtain his conveyance for a valuable consideration. This would, of course, exclude a mere volunteer who takes by gift, devise, inheritance, etc., from the benefit of these statutes.” See also the cases cited. Pomeroy, in his Equity Jurisprudence, vol. 2, §747, says: “No person who has acquired title as a mere volunteer, whether’by gift, devise, inheritance, post-nuptial settlement on wife or child, or other-, wise, can thereby be a bona fide purchaser.” See also 4 Kent’s Comm. (14th ed.) 549, *456. In the case of Way v. Lyon, 3 Blackf. 76, it was held by the Supreme Court of Indiana that “ A voluntary conveyance of real estate, though not recorded as prescribed by statute, is valid against any subsequent voluntary conveyance of property executed by the grantor.” See to the same effect Snodgrass v. Ricketts, 13 Cal. 359.

There was uncontradicted evidence by one witness that the first deed was actually delivered. This witness was not impeached, and no attempt was. made to impeach him. The grantor was introduced as a witness, and was allowed to testify, over objection, that when he gave this deed to his son he intended it as a delivery. Under the ruling in the case of Hale v. Robertson & Co., 100 Ga. 168, and the cases there cited, it would seem that this evidence was admissible. But whether it was or not, one witness, as before stated, had testified positively that the deed was delivered. Even if the evidence as to what the grantor said to his son was not admissible, we would not reverse the judgment on that point alone, especially as the question discussed in the first division of this opinion is, in view of the uncontradicted evidence above mentioned, controlling in this case. The grantor’s wife was introduced for the purpose of contradicting him as to his intention to deliver the deed, and it was proposed to prove by her certain conversations had between them as they were looking over his papers, when he said that the deed he made to his first wife and -children was not worth the paper it was written on, and that he had never delivered it. This evidence was clearly inadmissible, because it undertook to give a confidential conversation between husband and wife. In the case of Stanford v. Murphy, 63 Ga. 411, this court held that “the wife is an incompetent witness for or Against the husband in regard to any information derived from his confidence in her; and therefore she can not testify in respect to papers consigned to her care by her husband, and kept •exclusively by her under her own lock and key.” In the opinion, Jackson, J., said : “Any confidential communication from husband to wife may not be divulged in any court, for the reason that the fact communicated was disclosed in the privacy •of the marital relation, and the peace of the household might be disturbed if it were divulged.” See also Civil Code, § 5198, And cased cited.

The deed offered in evidence and rejected by the trial judge was irrelevant. Its rejection was not error.

Judgment affirmed.

All the Justices concurring.