John E. Wiggins, contra.Frank M. Gleason, W. D. Moon, Jr., for plaintiff in error.
1. Sustaining of the defendant's demurrer to the paragraph of plaintiff's original petition, seeking cancellation of the deed for nonpayment of consideration, was proper.
(b) Count 3 of such amended petition, seeking cancellation of the deed for nonpayment of consideration, was likewise subject to general demurrer.
(c) Count 6 of such amended petition, attempting to recover the fair market value of the property instead of the consideration of such deed, was also subject to general demurrer.
(d) Count 2 alleged lack of delivery of the deed as ground of cancellation in that the defendant held the deed only for safekeeping pending further negotiations, and the sustaining of the general demurrer to much count was erroneous.
(e) Count 4 alleged fraudulent conversion of the deed as ground of cancellation, and it was likewise error to sustain the general demurrer to this count.
(f) Count 5 also alleged lack of delivery of the deed as ground of cancellation, in that no agreement had been reached and no contract of sale made, and it was error to sustain the general demurrer to this count.
(g) The defendant's demurrer to a paragraph common to counts 2, 3, 4, 5 and 6 is deemed abandoned.
3. The trial court properly overruled grounds 2 and 3 of the plaintiff's general demurrer to the defendant's separate answer to the plaintiff's amended petition; the error assigned upon the overruling of ground 1 of such demurrer is deemed abandoned.
The dismissal of a petition seeking cancellation of a deed and other relief and the overruling of demurrers to the answer to that petition are for review here. Involved are questions relating to consideration for the deed, delivery of it, fraud of the named grantee, and one question as to procedure.
The petition was filed by Mrs. J. L. Morris against Mrs. Estelle Johnson in the Superior Court of Catoosa County, Georgia. Originally the petition was in one count, and to it the defendant interposed several grounds of demurrer. Three were sustained, and error is assigned thereon.
Subsequently the petition was amended by constituting it in six counts, the allegations of which will hereinafter be elaborated upon. To this amended petition the defendant renewed her former demurrers and interposed additional ones. The trial court sustained general demurrers to each of the six counts, and also a demurrer to a paragraph common to counts 2, 3, 4, 5 and 6, thus producing the second assignment of error.
In addition, the plaintiff complains of the overruling of her demurrers to the defendant's answer which denied the material allegations of her amended petition.
1. Although the assignment of error to the ruling on the demurrers to the original petition included all three demurrers which were sustained, the plaintiff has now expressly abandoned two of them. The assignment still insisted upon is the sustaining of the demurrer to paragraph 5 of the original petition, which asserted that the deed is void and should be canceled because no consideration was paid for it, and ordered that such paragraph be stricken.
In paragraph 5 the plaintiff alleged that the deed is "null, void and of no effect because no consideration was paid by the defendant to the plaintiff's deceased husband for the land. Said deed recites One Dollar and Other Valuable Considerations as having been paid by defendant to plaintiff's deceased husband . . . the defendant did not pay the valuable consideration referred to in said deed, and paid absolutely nothing for the property, and because said deed is wholly and completely without any consideration whatsoever, it is null, void and of no effect."
The basis of the demurrer is that these allegations, and the copy of the deed attached to the petition, show an agreement by the defendant to pay "One Dollar and Other Valuable Consideration," that her agreement to pay such sum is a sufficient consideration to make the conveyance valid, and that the nonpayment alleged does not affect the validity of the deed.
On the other hand, plaintiff contends that this paragraph alleges lack of consideration, not nonpayment of consideration. We cannot agree.
In our view this ground of demurrer was properly sustained.
At the outset, it should be pointed out that, although some counts of the amended petition allege that the parties never agreed on a consideration for the deed, neither the paragraph now under consideration nor the original petition of which it is a part does so. There is no allegation as to fraud in the procurement of the deed, thus distinguishing this situation from that in such cases as Pittman v. Pittman,
210 Ga. 133 (1) (78 SE2d 37), where the record shows the allegations as to consideration to be very similar to those here, this court refused cancellation of the deed. There, the deed acknowledged receipt of $2,750 as its consideration, but upon the bank's refusal to pay the check given as payment, the grantor sought to cancel the deed. He alleged that "Said purported check or no part thereof has ever been paid to plaintiff or to any one for her; and plaintiff received no consideration of any kind or character for the house and lot described in the aforementioned deed . . . and that [plaintiff] had received no valuable or good consideration of any kind or character for the house and lot described in said deed." Construing these statements to allege nonpayment of consideration, rather than lack of it, this court held: "As between the grantor and grantee, in the absence of fraud, any sum paid or contracted to be paid is sufficient consideration to make a conveyance of realty valid. [Citations, including the foregoing decisions.] Hence, where title to realty passes by an absolute deed of conveyance, as it did in this case, the fee simple estate is not forfeited, as the plaintiff in error contends, merely because of the grantee's failure to pay the consideration for which the deed was actually executed; and this is so since the obligation to pay the purchase money may be enforced by appropriate legal action."
The holdings of those decisions and others like their we deem controlling.
The allegations here, as we must construe them on demurrer, are, purely and simply, this: there was no consideration for the deed because, although the deed recited that the named consideration had been paid, actually it had not been paid. Each assertion of no consideration goes back to that. Thus, there is a conclusion of lack of consideration which the facts alleged do not support. Under these allegations the plaintiff is not entitled to cancellation.
Therefore, we hold that this paragraph was subject to the demurrer lodged against it.
2. We now consider the rulings on the demurrers to the plaintiff's amended six-count petition.
(a) Count 1 was constituted from paragraphs 1, 2, 3, 4 and 6 of the original petition. It seeks cancellation of the deed.
This count has no vitality. Paragraphs 1 through 3 allege only residence of the parties and the plaintiff's status as widow and sole heir at law and her inheritance of the property in question. The portion of paragraph 4 remaining after express abandonment by the plaintiff of some of its allegations (nondelivery of the deed to the defendant and that she procured possession of the deed by trickery and then recorded it) recites the death of her husband on December 19, 1960, his execution on December 16, 1960, of the deed involved here and the assertion that the deed is null, void, of no effect and should be canceled. Paragraph 6 of this count merely asserts the relief to which plaintiff claims she is entitled.
The trial court properly held this count subject to general demurrer.
(b) The remaining counts adopt various paragraphs of other counts. However, we will not attempt to set out all allegations but will refer only to those constituting the basis of the cause of action relied upon in each count.
Count 3 alleges that "said deed is wholly without consideration, in that the defendant did not pay the plaintiff any sum of money whatsoever for said land and no consideration of any description ever passed between plaintiff's deceased husband and the defendant, and because said deed is wholly without consideration it is null and void and should be canceled." It does not allege fraud, lack of capacity to execute the deed, lack of delivery of the deed, or that the parties never agreed upon a consideration.
The allegations of this court are substantially the same as those ruled upon adversely to the plaintiff in Division 1. What was said there is applicable here.
This count was properly held subject to general demurrer.
(c) Count 6 seeks to recover the fair market value of the property. It alleges that such value is $10,000, that the defendant has not paid anything for the property but contends that she owns it, although she "fraudulently procured possession of the deed thereto" and recorded it after the death of Mr. Morris.
After extracting from these allegations the conclusions of law as to fraudulent procurement of the deed, under the well established rule that general allegations of fraud raise no issue, this count provides no basis for the relief sought. Value of the land is immaterial under these allegations. It is not alleged in this count that the consideration recited in the deed was not the agreed upon consideration. Without that and without effective allegations of fraud, no basis is shown for recovery of the market value of the property.
The trial court properly sustained the general demurrer to this count.
(d) Count 2 relies upon lack of delivery of the deed to the defendant. It recites that the deed came into her possession under the circumstances which follow.
The negotiations included discussion of the sales price of such land which the defendant wanted to purchase and Mr. Morris wanted to sell, but they were unable to agree on a fixed amount. They agreed to continue discussion of price at a later time, to meet in the future and agree upon the price before the sale, after which it would be considered completed and the purchase money paid.
Mr. Morris then went to a named title company, had this deed prepared and signed it before a witness and a notary public. The defendant was not present, and while the deed recites that it was signed, sealed and delivered to her in the presence of such witness and notary public, such is not true. It was not delivered to her in their presence, there was no actual physical delivery of it to her on this occasion or on any other occasion, and it was never delivered to her.
After Mr. Morris signed the deed, he returned to the defendant's apartment and they resumed discussion as to the amount of the purchase price, but at no time did they ever agree on or set a price for this property. Being unable to agree on price, they decided to discuss the price in the future. They never held any further discussions because Mr. Morris died shortly thereafter and before they ever agreed on the consideration to be paid for the property.
On the same day, December 16, 1960, Mr. Morris left the deed with the defendant as his bailee, for safekeeping, to be held by her as his agent until the next discussion which they had agreed to hold in order to set the purchase price of such property. The defendant was holding this deed from December 16, 1960, until December 19, 1960, as bailee and agent for Mr. Morris, awaiting their further negotiations on the purchase price.
On December 19, 1960, Mr. Morris suddenly died. The defendant learned of this, recorded the deed and then claimed the property as her own, claiming for the first time that this deed had been delivered to her.
Because of the above facts plaintiff contends that no agreement was ever reached as to the sale of the property and the deed was never delivered to the defendant but was merely left with her as Mr. Morris' bailee and agent, for safekeeping pending their further negotiations. She urges that it therefore conveyed no title and should be canceled.
In support of her general demurrer to those allegations, the defendant contends that the delivery of the deed to her under the foregoing circumstances was an absolute delivery, or at least an attempted delivery in escrow, and that in either event title to the property described in the deed vested in her instantly, divested of all parol conditions.
After considering the reasons given in support of these contentions and examining the authorities bearing upon the question, we conclude that this count alleges lack of delivery of the deed. It is significant that no third party is involved here.
Although a presumption Of delivery is raised by such factors as possession of the deed by the grantee, Code 29-105, a recital of delivery in the deed's attestation clause, Fuller v. Fuller,
211 Ga. 201 (84 SE2d 665), and reservation of a life estate by the grantor, Keesee v. Collum,
208 Ga. 382 (67 SE2d 120), such presumption may be rebutted by evidence that in fact the deed had not been delivered. Allen v. Bemis,
211 Ga. 201, supra; Keesee v. Collum,
208 Ga. 382, supra.
The criterion of delivery, expressed in 7 Thompson, Real Property, 4113, pp. 562, 564, and quoted approvingly by this court in Stinson v. Daniel,
208 Ga. 382, supra, which is similar in principle.
In the Keesee case there was evidence as follows. A father executed a deed to his daughter in 1949. At the time of the execution the daughter was not present, no delivery was made, and the father made no statement of his intention as to delivery but took the deed and placed it in his trunk. Later, in 1950, the father had his four children assemble at his home. He gave a son the key to the trunk and had him bring from it a tin box containing money and envelopes with deeds and papers. The father divided the money into four equal parts and handed the daughter the envelope with the deed previously executed to her. Then, before he had done anything with the other deeds, he stated, "I will fix the rest tomorrow, I have got to lay down . . . I will finish later . . . put them all up." The son picked up the money and envelopes, including the one handed to the daughter by the father, and put them back in the father's trunk where they remained until after his death, when the son as one of the administrators took them out and delivered the daughter's deed to her.
In sustaining an attack on the delivery of that deed to the daughter by the father, this court stated: "Even though the evidence authorized a finding that at the time the grantor was preparing a division of his property, and [the daughter] at one time had physical possession of the deed to her for a few minutes, the jury, under the facts and circumstances appearing, were authorized to find that the maker did not intend to surrender dominion over the deed . . . The delivery of a deed is complete as against the maker only when it is in the hands of or in the power of the grantee or someone authorized to act for him, with the consent of the grantor, and with intention that the grantee hold it as a muniment of title. O'Neal v. Brown,
210 Ga. 133 (I) (
78 SE2d 37), has not the slightest relation to a situation in which there is, as alleged by the petition in the instant case, no consideration for the deed. It seems obvious to me that the collection of the consideration of a deed bat had none can not be accomplished.
It should be remembered that the petition contains the allegations: Original petition, Par. 5. "That irrespective of the manner in which defendant acquired possession of said deed, the same is null, void and of no effect because no consideration was paid by the defendant to the plaintiff's deceased husband for the land. Said deed recites One Dollar and Other Valuable Considerations as having been paid by defendant to plaintiff's deceased husband. The defendant states that she has paid for the property a large sum of money and made this statement to plaintiff's attorneys but she refuses to show the check with which she made the payment or produce any receipt to show payment and plaintiff alleges that the defendant did not pay the valuable consideration referred to in said deed, and paid absolutely nothing for the property, and because said deed is wholly and completely without any consideration whatsoever, it is null, void and of no effect." (Emphasis supplied.) Count 2, Par. 5 (d). "That after plaintiff's deceased husband signed such deed, he went back to the defendant's apartment and they resumed their discussion as to the amount of the purchase price. At no time did they ever agree on a price for such land, nor did they set the purchase price. Being unable to agree on price, they decided to discuss the price in the future. They never held any further discussions because plaintiff's husband died a short time thereafter, and before they ever agreed on such consideration to be paid for such property." Count 3, Par. 2. "That said deed is wholly without consideration, in that the defendant did not pay the plaintiff any sum of money whatsoever for said land and no consideration of any description ever passed between plaintiff's deceased husband and the defendant, and because said deed is wholly without consideration it is null and void and should be canceled."
The original petition and each of the counts to which there is reference, under a familiar rule of pleading, stands as a separate unit of pleadings, as individual and segregated from other parts of the petition as different petitions concerning the same subject matter, none of the averments of any count being made a part of another by reference. But, in my opinion, the total want of consideration for the deed is made to plainly appear in the original petition and each of the counts, parts of which are quoted above. So, I am firm in the opinion that the allegations of the petition sufficiently showed there was no consideration for the deed we consider in the present case. The want of such consideration is, under the statutes of this State and the previous holdings of this court, cause to cancel the deed. The cases of other jurisdictions, where the statutory law and the interpretation of statutes is different from ours, furnish no valid basis of a contrary view from that expressed here. The majority opinion in the case sub judice, though that of scholarly Justices equally as conscientious as I in the expression of their conclusions, is not in line with the well settled rule, so vital in the enforcement of sacred property rights, that, as simply stated in Code 29-101, a consideration is essential to a deed.
There is no statute of the State or holding of this court which relegates the grantor to the remedy of seeking to recover the consideration stated in the deed where in fact there was no actual consideration for the same. To rule that in any event, as the court has in this case, that the collection of consideration expressed in the deed is the grantor's only remedy, when in fact there was no consideration, is in effect to completely nullify the rule that permits inquiry into the consideration of deeds. There is no logical reason to inquire into the want of consideration in a deed, if the only remedy the grantor has is to collect the consideration expressed in the deed, although the recitation as to the consideration be false.
1963
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