Latham v. Inman

Bleckley, Chief Justice.

1. The title of Mrs. Latham’s deceased husband, or of herself and children as his heirs at law, was in no way strengthened by the fact that she claimed and had set apart a homestead in the premises for herself and the minor children. It was not error, therefore, to reject the record of the homestead proceedings tendered in evidence.

2. The action was not brought.to recover possession, the plaintiffs alleging that they already had possession. The ultimate relief prayed for was that the two deeds under which the defendant claims (one from Atwood to Venable ; the other from Venable to Inman, the defendant) be delivered into court and cancelled. To say nothing as to what other parties, if any, ought to be before the court in order to cancel these ' deeds, it is manifest that if the deeds pass title either to the whole or to an undivided part of the premises into Inman and constitute the muniments of such title, these plaintiffs could have no decree that the deeds be cancelled. The deeds might be too large and undertake to convey too much, but this would not subject them to cancellation if they carried title as against the plaintiffs to any part of the premises. The plaintiffs might be entitled to some other relief, but not to this. If the defendant is a tenant in common with them by reason of title to one undivided half of the premises being effectively conveyed by these deeds, there is no ground to cancel them.

3. If John M. Atwood was sole and exclusive owner of the small lots which were subdivisions of a larger tract in which he had an undivided half-ownership, and sold these lots by parol contract at auction to Latham, who paid the purchase money in full and took receipts therefor from the auctioneer, but no conveyance, Latham acquired a perfect equity. The plaintiffs, as his heirs at law, would be full and complete owners as against Atwood. The formal legal title would, however, be left in him, he holding it as trustee, first for Latham, and after his death for his heirs. The evidence might warrant the conclusion that such were the facts, but it also warrants the conclusion that whilst thus invested with title as trustee, Atwood through his attorney in fact sold and conveyed for value to Venable his original undivided half, together with a one forty-eighth, of the larger tract, thus passing into Venable by deed the formal legal title to one undivided half, with an additional one forty-eighth, of the small lots previously sold by Atwood to Latham. If Venable took with notice of Latham’s rights, he would be affected thereby just as his vendor, Atwood, was affected, and would hold in trust to the extent of one half, and perhaps the additional forty-eighth, of these lots for Latham or his heirs. If, on the other hand, he paid his money and acquired title without such notice, he would not be affected by the outstanding equity, and, as to all the deed covers, would hold free from that equity, and from any trust in behalf of Latham or his heirs. This would be so whether he caused his deed to be recorded within twelve months after its execution or not, for the recording of a deed within that time is made indispensable by the statute only where there are two or more conveyances by the same grantor. The provision is not applicable to a case in which only one conveyance has been executed. Code, §2705; Cobb’s Dig. 175; Webb v. Wilcher, 33 Ga. 565. The letter of the statute is confined to deeds, hut as a bond for titles, being under seal, is in a large sense a deed, perhaps it could be treated as within the statute after payment of the purchase money in full. This assumption seems involved in Allen v. Holding, 29 Ga. 485, and in the same case on a second writ of error, 32 Ga. 418. And see Nethery v. Payne, 71 Ga. 374. But there is no ruling that a parol contract, or a mere receipt for purchase money, would prevail against a younger unrecorded deed made to a bona fide purchaser without notice.

An examination of the deed from Atwood to Venable shows that it left, if not an undivided half of these small lots, certainly an undivided part equal to twenty-three forty-eighths, outside of the scope of the conveyance ; and consequently Venable never had, so far as appears, any conveyance which purported to pass title to him to more than an undivided share equal to twenty-five forty-eighths in these lots. It would thus seem that until Venable conveyed to Inman, he and Latham’s heirs were tenants in common, even conceding that Venable was a purchaser from Atwood without notice. Nor was this tenancy in common necessarily dissolved by the judgment of partition by which some of these small lots were assigned to Venable in severalty. That judgment did not bind the plaintiffs, because of the general rule that judgments inter partes bind only parties thereto and their privies. Plaintiffs were not parties— not served nor otherwise notified of the proceeding. Therefore the judgment could not bind them. It was not an adjudication that Venable was the owner of the lots assigned to him as against the world, but only as against the parties to the judgment and their privies. It was not a judgment in rem. Childs v. Hayman, 72 Ga. 791. Venable’s title was not strengthened by it. Its sole effect as against the world was to assign a definite abode to that title which was before a vagrant over the whole tract. The change wrought by the partition was merely in the locus operandi, and not in the strength of the title. Of course, if the parties to the partition, other than Venable, had the true title, or a better title than that of the plaintiffs, to the fractional interest in these small lots which was not covered by the deed from Atwood to Venable, then Venable did, by reason of the partition, acquire such true or better title in the particular lots assigned to him, if he was still without notice of the plaintiffs’ equity; for by partition each tenant who participates in the division, where the property is divided in kind, gives to the others as much as he .receives from them, and is therefore a purchaser for value of their interest in the parcel allotted to him.

4. Inman being a Iona fide purchaser for value from Venable of a portion of the premises in controversy, would take all his rights in that portion of the premises, with the additional right of not being affected by any notice which Venable may have had of the Latham equity, unless he (Inman) also had notice. But in either event, he too might be a tenant in common with Latham’s heirs to the same extent to which Venable was such tenant.

The finding of the .judge that under the evidence before him there was not such possession in Latham or his heirs as served either to give notice of the Latham equity, or to raise title by prescription, may or may not have been correct. A careful examination and study of the evidence has convinced us that it was not sufficiently decisive to require a different finding from that made; and as the judge was the arbiter of the facts, chosen by the parties in lieu of a jury, we think they should abide by the conclusion at which he arrived. Though we differ with the judge in his interpretation and application of the recording statute, we can still agree with him. that the relief prayed for ought to have been denied.

Judgment affirmed.