Citizens Bank v. Taylor

Hill, J.,

dissenting. I can not concur in the judgment of reversal. It appears from the record that on October 31, 1924, a paper was signed by J. W. Taylor, in the form of a warranty deed, purporting to convey to his wife, Mary Taylor, who was a third wife, “forever in fee simple,” described realty upon a cash consideration of $1,000. The paper was duly attested by two witnesses, one of whom was an officer authorized to attest deeds. After the paper was thus signed and attested, Taylor added thereto, out of the presence of attesting witnesses, a clause as follows: “At her death *211this goes to my children Florence and Medford Taylor.” After the paper was thus altered it was delivered by Taylor to his wife and was recorded November 12, 1914. J. W. Taylor executed, on what purports to be the same day, October 31, 1914, a warranty deed to his said wife, purporting to convey the same land upon a cash consideration of $1,000. This deed was attested by two subscribing witnesses, one of whom purported to be a notary public and ex-officio justice of the peace. The deed was recorded on November 24, 1917, over three years later. In 1922 Mrs. Taylor exhibited the last-named deed to the Citizens Bank of Mountrie, and, on the strength of her apparent title in virtue of such deed and possession of the land, obtained a loan, the bank having no actual notice of the deed first above mentioned. The loan deed executed by Mrs. Taylor was subsequently foreclosed, and the bank became the purchaser at the'foreclosure sale. After the death of Mrs. Taylor, the two children designated in the first deed, who had lived with Mrs. Taylor, their stepmother, on the land, and who remained in possession of the land, instituted an action to cancel the second deed as a cloud upon their title, and to enjoin interference with their possession. On the trial the judge directed a verdict for the plaintiffs, and the defendants assign error on the ground that this direction was contrary to law and without evidence to support it. I am of the opinion that the exception is without merit under the facts of this case. The first deed was, so far as the registration shows, perfectly regular on its face, as to execution and registration, and was sufficient to put a subsequent purchaser under a deed purporting to be executed by the same vendor on the same date, to the same property, but recorded nearly three years later, on notice of whatever interest the vendees (the children) had therein. This case is different in its facts from the case of So. Iron Co. v. Voyles, 138 Ga. 258, 261 (75 S. E. 248, 41 L. R. A. (N. S.) 375, Ann. Cas. 1913D, 369), in that in the present case both witnesses who attested the first deed were qualified to attest deeds, including the official who witnessed it. In the Voyles case the instrument was defectively attested, because the notary public was a stockholder in the corporation, and was therefore disqualified on account of interest from attesting as such notary the deed or bill of sale to which the corporation was a party. The record in the present case is silent as -to which of the two deeds was executed first. They purport to *212have been executed on the same date. If they were executed simultaneously, the first deed recorded would take precedence over the one recorded about three years later. Civil Code (1910), §§ 3320, 4198. Where two deeds between the same parties, for a valuable consideration, are executed on the same date, conveying the same land, one recorded twelve days after its execution, and the other not recorded until nearly three years after its execution, and the title conveyed in each deed is conflicting, the 'first deed filed for record will prevail over the second. §§ 3320, '4198. Title once vested is not divested or revested in the vendor by the mere destruction or change of the first deed, by agreement in parol between the vendor and vendee. Marchant v. Young, 147 Ga. 37 (2) (92 S. E. 863); see 18 C. J. 406, § 473. Where a deed is properly executed by a vendor to his third wife, conveying a fee-simple title, but before delivery of the deed the vendor inserts therein a clause: “at her death [vendee] this goes to my children Florence and Medford Taylor,” without further attestation, and the deed is then delivered to the wife, who accepts the deed, goes into possession of the land, and has the deed promptly recorded, this will create a life-estate in the wife, with remainder over to the children, and the delivery of the deed to the life-tenant and possession of the-land by her will enure to the benefit of the remaindermen; and where such deed is duly recorded, and such registration shows the deed to be regular on its face, such record is sufficient to put subsequent purchasers of the fee from the wife on notice of the remainder interest vested in the children. I can not concur in the view of the majority that a deed must be “a perfect deed” in order to admit it to record and put third parties on constructive notice of the interest of the vendee in the deed which is regular on its face and properly recorded. The evidence shows that Mr. and Mrs. Taylor tried to sell this land to several persons before selling it to the bank; and the parties declined to buy it, because they examined the recorded deed in the clerk’s office, and saw that Mrs. Taylor did not have a fee-simple title to the land. And neither Mr. nor Mrs. Taylor claimed that the latter had a fee-simple title, but they said that “the children would not bother them” if they bought. If the bank had used the same precaution, it' would have discovered the same thing, viz., that Mrs. Taylor could not sell what she did not possess — a fee simple title. The deed was. perfectly *213good, recorded or unrecorded, as between Mr. and Mrs. Tajdor, and that deed as recorded gave; Mrs. Taylor only a life-interest in the land, and the remainder to the children, and, being regular on its face and properly recorded, was sufficient to put the world on notice as to who owned the remainder interest in the land.- The court properly directed a verdict for the plaintiffs.