Where, in a suit for land, the right of the plaintiffs was predicated upon an alleged lost and unrecorded deed executed in 1902, proof of the existence of a genuine original must have been established before secondary evidence relating thereto would have been admissible.
(a) Where, in an effort to establish a lost and unrecorded deed alleged to have been executed in 1902, a certified copy of a petition, filed by the plaintiff's father in 1909 to sell for reinvestment and attaching a typewritten copy of what purported to be the alleged unrecorded deed, was admitted in evidence, said evidence did not establish that in fact a genuine deed had been executed.
(b) Nor did the fact that the petition, just above referred to, asserted that the plaintiffs' father had a life interest and the children had a remainder interest in the land, make the assertion therein a declaration against the interest of the plaintiffs' father in the instant case.
(c) Evidence of a statement by one of the defendants, that she knew such a deed was in existence in which the father and his children were grantees, was not sufficient to establish the deed of 1902, for the reason that such as an admission was too indefinite to properly identify and establish the existence of any particular deed.
No. 15203. JULY 6, 1945. REHEARING DENIED JULY 23, 1945. The pleadings in this case were fully set out in Latham v.Fowler, 192 Ga. 686 (16 S.E.2d 591). In 1939, Mrs. R. C. Fowler, and four other children of G. W. Latham (deceased) filed an equitable petition for the recovery of twelve acres of land, the cancellation of deeds and part of a year's support as a cloud on title, and an injunction, against the widow (Mrs. W. T. Latham) *Page 649 and children of the decedent's brother, and the executor of an estate, who was then foreclosing on the land a security deed executed by the decedent's brother. The plaintiffs claim superior title by virtue of an unrecorded warranty deed, executed in 1902 to G. W. Latham by his sister, conveying the land to him for life and after his death to the plaintiff children, for the expressed consideration of five dollars and an "exchange of land." In the opinion holding that the petition alleged a cause of action for a recovery of the twelve acres, it was said (p. 690): "Where, as alleged in the petition, a grantor executed a deed to plaintiffs' father for life with remainder to them, for an expressed valuable consideration, and the father went into possession under the instrument, the grantor retained no title which she could afterwards convey to the father by a deed in fee simple, omitting the remainder. Consequently, under the averments that the defendants claim under this second deed to the father, other subsequent deeds from him and his grantee brother, and a year's support to the brother's widow and children including the same land which was deeded in the previous conveyances, and that all the defendants acquired their interests with actual knowledge of the plaintiffs' deed, though unrecorded, the petition showed a superior title in the plaintiffs and a right to recover the land."
Upon a subsequent trial of the case, the court ordered a nonsuit. All of the plaintiffs, with the exception of one brother whose interest had been purchased by a sister, renewed their suit for recovery of the land as provided in the Code, § 3-808. The allegations as renewed were substantially the same as those set out in the former petition.
When the case again came on for trial, the plaintiffs tendered in evidence a certified copy of a petition to sell and reinvest, filed in 1909 by G. W. Latham in the superior court of Fulton County. The petition to sell and reinvest, after naming the children of G. W. Latham, stated: "That on January 31, 1902, Jennie W. McDonald, petitioner's sister, made to him a warranty deed for life, and after his death to his children, to the following described tract of land. . . That the above described 12 acres of land has no improvements on it, and brings only a small income and is an expense for taxes." The petition, which was sworn to, did not state that G. W. Latham was in possession. Attached to the *Page 650 above petition was a purported copy of the unrecorded deed which showed that it was executed in the presence of two witnesses, one of whom was a notary public. The petition also showed that it was allowed to be filed and that service was made on the plaintiff children. The above evidence was admitted over objection.
Mrs. Annie Mae Latham Fowler, one of the plaintiffs, testified in part: "George W. Latham was my father. . . Mrs. Lucinda Latham. . . is my grandmother. She had three children, . . W. T. Latham, G. W. Latham, and Mrs. Jennie McDonald. . . W. T. Latham was my uncle, and Mrs. McDonald, my aunt. . . I married . . R. C. Fowler. I have seen this paper [copy of petition to sell and reinvest]. This paper was left with me as a child. After it was served on me, my mother kept it a long time. . . I was 12 or 13 years old when that paper was served. . . When the man came out there, he gave me mine. . . Mama kept it in her trunk. . . George W. Latham, W. T. Latham, and my aunt, Jennie McDonald, came down to the house and they were talking about the papers, and Uncle Will (W. T. Latham) was going to buy this land then, and he would not buy without these papers were burned up. . . When he said that, Mama was crying. She didn't want them burned up. So, she got an envelope, the envelope with these papers out of her trunk, and she was sitting in the rocking chair in front of the fire, and when he said that, why, she put the papers under her leg, . . and put the envelope in the fire. After they left my father's house, my mother put these papers back in her trunk. . . I am not in possession of the deed dated January 31, 1902, referred to in the petition to sell and reinvest, and have made a diligent search and can't locate, and have never seen the same."
Thomas E. Latham, one of the plaintiffs, testified: "I have seen a paper that purports to bear the name of Mrs. Jennie McDonald to G. W. Latham (referring to petition to sell and reinvest). She was supposed to destroy the deed. She did not destroy it. She only destroyed the envelope and she kept the papers out of the envelope. I was living with my mother at that time. I was sitting right by the fireside. I was around 8 years old. . . My uncle, aunt, mother, and father were present when that took place. . . I am talking about . . the papers you have there. This is the paper that mother took out of the envelope. . . *Page 651 That is the paper I am talking about as the deed. I described this as the deed. That is the paper mother took out of the envelope, and that is the paper I am talking about as the deed."
Katherine Latham, one of the plaintiffs, testified: "My father died in 1922. . . The only time I have seen this paper (referring to petition to sell and reinvest) was when my sister had it. . . I do not know anything about the existence of an old original deed from Mrs. Jennie McDonald to G. W. Latham, only hearsay, only just what I heard my mother say. I don't know anything about it; I never had that original deed myself. I looked for it since this lawsuit started. . . Our house got burned up when I was around 12 years old and everything burned up."
Mrs. Lilly Bell Weisbacker, one of the plaintiffs, testified: "I am the daughter of G. W. Latham. . . I have seen this paper (referring to petition to sell and reinvest). . . I was about five years old, . . when I was supposed to have been served with a copy of this paper. I am 40 years old now. I never knew of the existence of a deed or saw the original deed from Mrs. Jennie McDonald to G. W. Latham for life, with remainder over to his children. I never had any such deed in my custody, possession, or control. I have made a search for it the best I could. I have been unable to find it, to locate that paper if it ever existed."
Mrs. Pearl Relford, one of the plaintiffs, testified: "George W. or G. W. Latham was my father. . . I have no recollection of papers that were served on me as a child. I was quite young in 1902. . . I never had in my possession, deed from Mrs. Jennie McDonald, to G. W. Latham. I never saw any deed such as that concerning this 12-acre tract."
H. E. Edwards testified for the plaintiffs: "During the last two years, I . . was present when Mr. Allen had a conversation with Mrs. W. T. Latham. . . Mr. Allen asked her with reference to this 12 acres, if she knew there was such a deed in existence made to G. W. Latham and his children, and she said she did."
Mrs. Lillian P. Latham, one of the defendants, testified: "I am the widow of W. T. Latham, who died the 25th of May, 1920. I never did see a deed executed by Jennie McDonald to George W. Latham for life, executed in 1902. I have heard of it . . in later years, but I never heard of it until about three or four years *Page 652 ago. Mrs. Pearl Relford was the first one to tell me about it. She came over to my house one Sunday. . . She said `Aunt Lillian, the children are going to sue you.' I said, . . `What have I got that belongs to them or that they have any interest in?' She said, `Well, I don't know exactly, but there is something or another about a tract of land back over home of 12 acres.' That is the first time I ever heard of it, of a deed like that, and they were going to sue for part of it, or them having an interest in it. I did not tell Mr. Allen out there one day that I knew about this old deed, because I didn't know. I couldn't tell what I didn't know."
The defendants also introduced documentary evidence including: (1) warranty deed dated March 10, 1911, and recorded April 8, 1911, from Mrs. Jennie McDonald to G. W. Latham, conveying the land in controversy; (2) warranty deed dated February 2, 1912, and recorded February 2, 1912, from George W. Latham to W. T. Latham, conveying the land in controversy; (3) proceedings for a year's support, filed by Mrs. W. T. Latham.
At the conclusion of the evidence, the jury returned a verdict in favor of the plaintiffs. The defendants made a motion for a new trial on the general grounds, which they later amended by adding several special grounds. The judge overruled the motion for new trial, and the defendants excepted, assigning error on that judgment. The first special ground of the motion for new trial complains of the admission in evidence of a certified copy of a petition, which had been filed by the plaintiffs' father to sell the land in question and reinvest the proceeds, attached to which was a typewritten copy of what purported to be the alleged unrecorded deed upon which the plaintiffs rely, over the objection there was no proof that this was a correct copy of the alleged original deed, or that there had ever been a deed.
Counsel for the plaintiffs insist that in the father's petition a correct copy of the deed was attached, and that, since the petition was sworn to, this was an admission in judicio by the father and against his interest, because it was an admission on his part *Page 653 that he had only a limited estate, and therefore the petition was admissible in evidence.
While the Code, § 29-113, provides the manner in which a copy may be established in the event an original deed is lost, it is also declared by statute: "The existence of a genuine original is essential to the admissibility of a copy." § 38-214. Therefore, whether there was any primary evidence relating to the existence of a genuine original deed becomes a material question.
The plaintiffs' case, as laid in their petition, depended entirely upon the existence of the alleged unrecorded deed. It was the very foundation of their case. The petition to sell and reinvest, attaching an alleged typewritten copy of an unrecorded deed, amounted at most to a representation that the petitioner held such deed. It did not establish that in fact a genuine deed had been executed. The allegation as to the existence of such a deed, being in the nature of a self-serving declaration, would not be evidence in the father's behalf; and while the admission in judicio that only a life estate had been conveyed to him might in a proper case bind him and his privies to that extent (seeAnsley v. Pace Co., 68 Ga. 402; Hamilton v.Williford, 90 Ga. 210 (4) (15 S.E. 753); Harris v.Amoskeag Lumber Co., 101 Ga. 641 (29 S.E. 302); Coursey v.Coursey, 141 Ga. 65 (2, 3) (80 S.E. 462); Kirkpatrick v.Faw, 184 Ga. 170 (2), 177, 190 S.E. 566), necessarily, if the father had no deed, he had no life estate for the reason that such estate was contingent upon the existence of a duly executed deed in his favor. Furthermore, estoppel can not be the basis of title to land, since estoppels are defensive rather than creative. Alsobrook v. Taylor, 181 Ga. 10 (3) (181 S.E. 182).
The petition to sell and reinvest did not constitute evidence of title in the petitioner under a deed of which the exhibit attached to the petition was a purported copy, and therefore, to authorize the introduction of an alleged copy of the deed referred to in the aforesaid pleadings of the father, it was necessary for the plaintiffs to first introduce evidence that such a genuine original deed had been duly executed to the father. Without showing possession by the father under such a deed, the plaintiffs sought to establish their title as remaindermen merely by the introduction of the aforesaid pleadings with the attached purported copy of the alleged deed to the father. With respect to the existence of a genuine original deed, *Page 654 the plaintiffs testified that they had never seen the purported unrecorded warranty deed, and did not know of their own knowledge that such a deed ever existed. One witness testified: "During the last two years . . Mr. Allen asked [Mrs. Latham] with reference to this 12 acres, if she knew there was such a deed in existence made to G. W. Latham and his children, and she said she did." This testimony does not describe any particular 12 acres of land, or necessarily refer to a deed covering the entire tract of 12 acres, rather than a portion thereof. No time or date of the execution of the deed referred to is covered by the testimony, nor is any time or date fixed as to when it is claimed that Mrs. Latham knew of such a deed being in existence. It does not show that the deed was properly executed, or who executed the deed as grantor, or what interest the grantees took. Such evidence is too indefinite to properly establish the existence of the deed relied upon, and is insufficient to lay a foundation for the introduction of secondary evidence. Furthermore, it appears from the uncontradicted evidence that the source of Mrs. Latham's knowledge was not that she had seen any such deed, but on the contrary she testified that she had not done so, but had "heard of it . . in later years, but [that she] never heard of it until about three or four years ago."
A different ruling is not required by the decisions in Beall v. Francis, 163 Ga. 894 (2) (137 S.E. 251); Massell RealtyCo. v. Hanbury, 165 Ga. 534 (6) (141 S.E. 653); Haden v.Liberty Co., 183 Ga. 209 (2) (188 S.E. 29); Sharp v.Autry, 185 Ga. 160 (194 S.E. 194); Winn v. Patterson,34 U.S. 663 (9 L. ed. 266), in each of which the existence of a genuine original was either not in dispute or was shown by primary evidence.
Accordingly, the trial court erred, under the proof submitted by the plaintiffs, in admitting in evidence the petition seeking to sell and reinvest.
The second special ground complains of the admission of evidence tending to show a conspiracy between the plaintiffs' father and his brother and sister to destroy the copy of the petition to sell and reinvest. Without proof of the existence of the original deed, this evidence was not admissible. The court having erred in admitting the copy of the petition to sell and reinvest, it was error to charge on declarations of a person in disparagement of his own *Page 655 title, as complained of in the third special ground. As abstract principles of law, the charges referred to in the fifth and sixth special grounds seem to be without error, but, in the absence of evidence of the existence of a genuine original deed, these instructions were not properly adjusted to the evidence. The rulings complained of in the fourth, seventh, eighth, ninth, and tenth special grounds are without merit.
Judgment reversed. Bell, C. J., Jenkins, P. J., Duckworth andWyatt, JJ., concur.