The evidence submitted on the trial was sufficient to make a jury question as to the existence or nonexistence of the alleged original unrecorded deed and as to its contents. Accordingly, the court erred in granting a nonsuit insofar as the plaintiffs' claim as remaindermen to the equity in the land under said alleged original unrecorded deed is concerned. However, since the evidence fails to indicate that the executor lending the money of his estate had actual present knowledge and recollection of the existence of any such prior unrecorded deed at the time he took a security deed to the land based on a deed from the same grantor, to the same grantee in fee simple, the judgment of nonsuit, insofar as the rights of the defendant estate as lienholder are concerned, is affirmed.
No. 15436. JUNE 6, 1946. REHEARING DENIED JULY 5, 1946. This is a third appearance of this case in this court; seeLatham v. Fowler, 192 Ga. 686 (16 S.E.2d 591), 199 Ga. 648 (34 S.E.2d 870), in which the facts involved are more fully set forth. Briefly, it is a suit by the children of George W. Latham, claiming under an alleged, unrecorded deed made by Mrs. Jennie McDonald on January 31, 1902, which deed it is alleged was prepared and witnessed by F. A. Quillian Sr., the attorney of the grantor, and by which it is alleged Mrs. McDonald conveyed the property here involved to Latham for life with remainder over at his death to his children, the plaintiffs in this suit. It is further alleged and admitted that at a date subsequent to that when the alleged first deed was executed, to wit, on February 12, 1912, Mrs. McDonald made an absolute deed in fee simple to Latham, also witnessed by F. A. Quillian Sr., which latter deed was duly recorded. Subsequently to the execution of the last-mentioned deed, it is alleged and admitted *Page 69 that George W. Latham conveyed the property in fee simple to W. T. Latham, who it is alleged had knowledge of the deed from Mrs. McDonald first mentioned above, and that F. A. Quillian Sr.'s name also appeared as a witness to this last-mentioned deed. Thereafter W. T. Latham made a loan deed to F. A. Quillian Sr., as executor of the Lena Tuck estate, which deed was duly recorded. Upon the death of W. T. Latham, the land here involved was set apart as a portion of the year's support allowed to his widow. F. A. Quillian Sr. having become deceased, F. A. Quillian Jr., having succeeded him in his administrative capacity as to the Tuck Estate, attempted to foreclose the loan deed from W. T. Latham; whereupon the children of George W. Latham, claiming under the alleged first unrecorded deed, filed an equitable petition praying that the second deed from Mrs. McDonald and the loan deed above referred to be surrendered and cancelled; that in the meantime the status of the loan deed be not disturbed, and that the year's support to the widow of W. T. Latham be declared null and void insofar as it pertains to the property now in controversy. This court held, when the case was before it for the first time, that the petition set forth a cause of action. It held, when the case was before it for the second time that, before secondary evidence relating to the existence and contents of said alleged first unrecorded deed would be admissible, such as that a petition had been filed by the alleged life tenant for permission to sell the property for reinvestment, the existence of the first-mentioned deed carrying a remainder interest in favor of the plaintiffs must first be established. On the third trial the plaintiffs undertook to supply this proof by evidence of the husband of Mrs. McDonald, who testified: "That, at the time they moved to Gordon Street, G. W. Latham wanted to trade his wife Jennie some lots he had on Langhorn and Hopkins Streets for the 14 acres she owned northwest of Mrs. Lou Latham. That his wife finally swapped with George (G. W.) Latham. That witness was familiar with the trade. That every time they would go to Mrs. Latham's, that was all they talked about. That G. W. had two lots over on Langhorn and Hopkins and he wanted some money, and she (Mrs. McDonald) was to swap him her lot for his and give him some money to boot, and they got Mr. F. A. Quillian Sr. to make out the deeds, which he did, and when he got them made out, Jennie and G. W. went to his office to sign them. That *Page 70 he had seen the deeds at his house on Gordon Street theafternoon they came back from Mr. Quillian's office. That there were four deeds. That the deeds to the 12 acres and the 2 acres were made about 1902, I would say about a year and a half after we moved from the 14-acre tract next to Mrs. Latham, to Gordon Street. Well, the 12-acre deed was to G. W. Latham his lifetime and at his death to go to his children. That this 12 acres was located northwest of Mrs. Lou Latham's home place, and the 2 acres was north of her house. That this deed to the 12 acres was signed by Jennie McDonald and was witnessed by F. A. Quillian and a fellow named Davis in Mr. Quillian's office. Yes, the deed to the 2 acres to George north of Mrs. Lou Latham's house was signed by Jennie McDonald too. It was witnessed by the same parties, Quillian and Davis. Yes, Mr. Quillian advised me about that time. I was administrator of my father's estate, and I would go down and get him to help me out with it. Yes, Mr. Quillian was Mrs. Lou Latham's attorney, and my wife's attorney for a long time, and anything my wife wanted to do she would consult him. Yes, the 12-acre tract that Jennie deeded to G. W. Latham out of [the] 14-acre tract is the same tract of land that is involved in this suit. That the only land she owned there at all was the 14-acre tract. That G. W. Latham was in possession of the 12 acres after that time, farmed and cultivated it, and planted apple trees on it. The witness knew this fact because he had helped him plant the trees and cultivate it. That G. W. Latham was in possession of it, and that he lived in a house down in front, south of Mrs. Lou Latham's house. That Mrs. Lou Latham was dead. That witness never had any interest or title in and to the 14 acres Jennie (Mrs. McDonald) owned northwest of Mrs. Lou Latham. I knew about G. W. Latham filing a suit in Superior Court of Fulton County to sell this 12 acres of land. I can tell you pretty close, it was right after the riot we had in Atlanta, between whites and negroes, which was about 1908. I was not present when the deeds were made. I saw the deeds after they were made, at out house. The deeds were lying there on the table and they were all talking about them and I picked them up and looked at them. The deed to the 12 acres, that I seen after G. W. Latham had it." This witness also testified with reference to having seen this deed to the land in question at another and different time, as follows: "After George Latham *Page 71 moved on Cascade Avenue, and was living down there, I went down on Sunday and he told me, if he could sell the 12 acres over there, he could buy this lot here on Cascade and would have a good home to live in for $800. I said, `George get that deed out and let me look at it;' and his wife went into the house and got it and brought it out for me to read it over; I read it and told him the only way he could sell it he would have to get an order of court. Yes, my wife Jennie's name was signed to this deed."
McDonald testified further on cross-examination: "Q. In order to refresh your memory, wasn't it a copy of the deed that George had — Mrs. George Latham had a copy, isn't that what they showed you? A. I can't say; I don't know, I was under the impression it was the straight deed, had the signatures on it and everything."
The plaintiffs introduced additional evidence tending to show that W. T. Latham, as well as his wife to whom a year's support had been set aside out of property which included the 12 acres in controversy, had knowledge of the pre-existing deed from Mrs. McDonald to G. W. Latham, in which a life estate was conveyed only to G. W. Latham with remainder over at his death to his children.
Mrs. R. C. Fowler testified in substance as follows: "That she was the daughter of George W. Latham. That from her childhood up to 1912 she was living with her mother and father. That, during her childhood, she was served by a person purporting to be an officer of the law with a paper. That she was about 12 or 13 years old at that time, and that her mother was in the field when the man came; and I kept the papers until she came to the house and then I gave the papers to her, and she kept the papers until we married off and then she gave them to us; and that this paper had been in the custody of witness ever since. That after the paper was served upon her, she was present at a time at which W. T. Latham and Mrs. McDonald and G. W. Latham come over to their house, the house of her mother, and discussed that paper. That Uncle Will (W. T. Latham) had stated in the presence of the named parties that, if she, my mother, would burn up those papers, he would buy the 12 acres; and I got the papers out of the trunk and gave them to my mother."
H. E. Edwards testified for the plaintiffs in part as follows: "Yes, we stopped at Mrs. Latham's house. When we first got there, *Page 72 Mr. Allen asked her in my presence to show him where the 12-acre tract of land in this suit was, and she stood on the porch and pointed out [where] the approximate confines or boundaries of the tract were. They sat down and began talking. Mr. Allen asked her if she didn't know at the time her husband acquired title to the 12 acres that a deed was in existence from Jennie McDonald to G. W. Latham, under which the children of George Latham had an interest, and she said she did."
The court at the conclusion of evidence for the plaintiff granted a motion of the defendant for a nonsuit, on the theory that the existence of the unrecorded deed had not been established. To this order the plaintiff now excepts. Under the record now before us, three questions present themselves: First, did the plaintiff comply with the adjudication of this court by introducing sufficient evidence to go to the jury with respect to the execution of the alleged original unrecorded deed from Mrs. McDonald to G. W. Latham, wherein the interest of G. W. Latham was limited to a life estate with remainder over to his children, the plaintiffs in this case? Second, if the existence of such original deed should be taken as established in the mind of the jury, did W. T. Latham and his widow, to whom the land was assigned as a portion of her year's support, have actual knowledge of the existence of any such previous unrecorded deed to G. W. Latham when he, W. T. Latham, acquired title from G. W. Latham? Third, did F. A. Quillian Sr., as executor of the Tuck Estate, take the loan deed from W. T. Latham with such notice or knowledge of the existence of the prior unrecorded deed to G. W. Latham as would bind the estate which he represented as executor, so as to authorize the court to restrain further proceedings in the foreclosure of its lien?
1. "The existence of a genuine original is essential to the admissibility of a copy. The amount of evidence to show such existence must vary with the circumstances of each case. Where no direct issue is made upon the fact, slight evidence shall be sufficient." Code, § 38-214. In Procter Gamble Co. v.Blakely Oil Fertilizer Co., 128 Ga. 606, 619 (57 S.E. 879), this court in *Page 73 discussing the measure of proof required to establish the validity of a deed in existence, and of the existence of a lost deed used this language: "If the original deed remained in existence, proof of the handwriting, added to its being in possession of the grantee, would, it is presumed, be prima facie evidence that it was sealed and delivered . . . But the deed is lost, and positive proof of the handwriting is not to be expected or required; the grantee must depend on other proof." In the case just mentioned, the court goes on to quote language used by Mr. Justice Campbell as follows: "We agree that the rule of law which requires the best evidence within the power or control of the party to be produced should not be relaxed, and that the court should be satisfied that the better evidence has not been wilfully destroyed nor voluntarily withheld. But the rule on the subject does not exact that the loss or destruction of the document of evidence should be proven beyond all possibility of a mistake. It only demands that a moral certainly should exist that the court has had every opportunity for examining and deciding the cause upon the best evidence within the power or ability of the litigant." After this quotation from Justice Campbell, the court went on to say: "In our opinion, as already intimated, the circumstantial evidence relied on to show the existence of a genuine original of the copy agreement for arbitration was sufficient to authorize the introduction of such copy in evidence. Of course, the admission of this document in evidence would not preclude the defendant from contesting the existence of a genuine original agreement for arbitration, but this, like all other issues of fact arising in the case, would be for the jury upon the whole evidence before them."
Turning now to the instant case, we think that it clearly appears that the plaintiffs introduced sufficient evidence (which is set forth in the statement of facts) to enable them to go to the jury on the question of the existence of the alleged lost deed; that, therefore, the secondary evidence became admissible; and that the court was in error in holding that the plaintiff had failed to submit sufficient evidence as to the existence of the alleged lost deed.
2. The evidence was sufficient to present a jury question as to whether W. T. Latham and his wife, who as his widow claims by virtue of an allotment of a year's support, had actual knowledge that his grantor, G. W. Latham, was clothed with only a life estate in the property when he, W. T. Latham, received his deed. *Page 74
3. To reach a conclusion as to the knowledge which F. A. Quillian Sr., as executor of the Tuck Estate, may have had with respect to the existence of a prior unrecorded deed, such as would bind the estate he represented, it is necessary to examine the subject of notice and knowledge as applied to the relationship of principal and agent. While it can not be said that an executor or an administrator of an estate is an agent of the heirs in the broadest meaning of the term, nevertheless it has been said by this court in Fussell v. Dennard, 118 Ga. 270,272 (45 S.E. 247), that "the administrator is an agent with limited authority." His is a fiduciary relationship calling for strict compliance with the duties and trust imposed; and therefore the rules of law governing notice or knowledge as between a principal and agent would have proper application to the relationship of an executor, or administrator with the will annexed, and the heirs of an estate. The general principles of notice or knowledge as between principal and agent have been set forth in Bean v. Barron, 176 Ga. 285 (2) (168 S.E. 259), as follows: "The law imputes to the principal, and charges him with, all notice or knowledge relating to the subject-matter of the agency which the agent acquires or obtains while acting as such agent and within the scope of his authority, or which he may previously have acquired, and which he then had in mind, or which he had acquired so recently as to reasonably warrant the assumption that he still retained it; provided, however, that such notice or knowledge will not be imputed: 1. Where it is such as it is the agent's duty not to disclose, and 2. Where the agent's relations to the subject-matter, or his previous conduct, render it uncertain that he will not disclose it, and 3. Where the person claiming the benefit of the notice or those whom he represents, colluded with the agent to cheat or defraud the principal."
While there is evidence, which the jury could have accepted, that F. A. Quillian Sr. drew the alleged original unrecorded deed from Mrs. McDonald to G. W. Latham, which conveyed the property in question to G. W. Latham for his lifetime with remainder over at his death to his children, and that he witnessed it as a notary public, and while there is additional evidence that he witnessed as notary public the second deed, executed about 10 years later from Mrs. McDonald to G. W. Latham, in which the same property was conveyed to the grantor in fee, and while it appears that he witnessed *Page 75 the subsequent deed from G. W. Latham to W. T. Latham, in which the same property was conveyed in fee; — nevertheless, there appears to have been a lapse of sixteen years between the date of the alleged execution of the original deed, dated January 31, 1902, and his act as executor of the Tuck estate, on October 18, 1918, in taking a security deed on the property involved.
While there is nothing disclosed by the record going to indicate fraud or collusion on Quillian's part, such as would prevent knowledge on his part to be chargeable to the estate that he represented, it is nevertheless manifest that, in order to assume that he took the loan deed with actual present knowledge and recollection of the existence of any previous unrecorded sixteen-year-old deed, would be to assume, not only that he jeoparded the funds of the estate which he represented, but that he took a grave personal risk to himself. And since it is clear that any knowledge as to the existence of the original deed was not acquired in his capacity as executor, and since it certainly can not be said that this previous knowledge of any alleged previous deed had been acquired so recently "as would reasonably warrant the assumption that he still retained it," and since there is no fact or circumstance tending to show any actual present recollection on his part of the alleged sixteen-year-old previous deed at the time the loan deed was taken — this court is of the opinion that the evidence demanded a finding in favor of the defendant executor on that question. If the alleged unrecorded deed had no existence, the defendant lienholder would prevail; and since, even if it did exist, under the ruling just made the defendant lienholder would nevertheless prevail, the grant of a nonsuit, insofar as the rights of the defendant lienholder are concerned, will not be disturbed.
4. If on another trial the jury should find against the execution of the alleged original unrecorded deed, that would be an end to the case, and they would find against the plaintiffs, claiming the equity in the land. If however, the jury should find that the evidence established to their satisfaction the existence of the original deed from Mrs. McDonald to G. W. Latham, in which the grantee's interest was limited to a life estate with remainder over in fee to the plaintiffs in this suit, then the question as to the validity of W. T. Latham's title and of his wife under him would depend upon whether they had knowledge of the existence of such original unrecorded deed at the time W. T. Latham took his deed. *Page 76 Judgment affirmed in part, and reversed in part. All theJustices concur.