Holly v. Whitehurst , 164 Ga. 265 ( 1927 )

Beck, P. J.

(After stating the foregoing facts.) The plaintiff in error in this case is H. H. Holly in his representative capacity as executor of the estate of T. B. Holly, deceased. The latter was a party to the case when it was first tried and upon its appeal to this court. The decision in the case on the first appeal is found in 162 Ga. 323 (Whitehurst v. Holly), and the foregoing statement of facts is substantially the same as that contained in the report of tiie case in the volume of Georgia Beports just referred to.

It was said, when this case was here before: “George executed a deed conveying certain lands to Holly for a valuable consideration; and the deed contained the stipulation, after reciting the existence of certain liens upon the land in favor of other parties, among them a mortgage to the plaintiff in. this case, that The grantee herein assumes and agrees to pay’ the debts secured by the liens and mortgages before recited. Holly in his answer denied that the deed was delivered to him and accepted by him. The evidence as to the deliverance and acceptance of the deed was conflicting. If the grantee did accept it, he was liable under the clause which we have quoted above, as to the payment of the debts specified. Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 245); Union City Realty &c. Co. v. Wright, 138 Ga. 703 (76 S. E. 35); Williams v. American Tie &c. Co., 139 Ga. 87 (76 S. E. 675). The conflict in the evidence made a question for the jury.” Under that ruling, the evidence in the present record being substantially the same as upon the first trial, it is adjudicated that the evidence is sufficient to support a verdict in favor of the plaintiff.

The contention that the charges -which are quoted in the second headnote were not authorized by the evidence in the case is without merit. When this case was here before it was said: “Holly in his answer denied that the deed was delivered to him and accepted by him. The evidence as to the deliverance and acceptance of the deed, was conflicting. . . The conflict in the evidence made a question for the jury.” This is a direct adjudication that there was evidence as to deliverance and acceptance of the deed; and the jury having found on the last trial in favor of that contention of the plaintiff, that finding can not be disturbed on the ground that there was no evidence to support that finding; and the judge having charged them upon the question of deliverance and acceptance, it can not be said that there was no evidence to authorize such a charge. The ruling made in that case, and which we have quoted, is abundantly sustained by other authorities than those quoted in the former decision; and it may not be out of place to quote from the evidence of the original defendant in the case, the present defendant’s testator, to show that there was evidence which authorized, if it did not require, a finding that the deed was delivered — that is, constructively delivered and accepted. T. B. Holly himself testified: “I have never had any such deed [the deed in question in this case] in my custody or control, nor have I any record of any such deed, nor have I ever accepted from Mr. George or any one else any such deed, nor have I ever come into possession of any such land as is described in such deed, nor been in possession at any time of the property described in said deed nor any of the stock or personal property described in it. Mr. George told me that he was embarrassed and would like to get it straightened out, and wanted me to let him make a deed to me for what he had. He said that Mr. Stone had an execution against him and was pushing it, and there was no danger in it for me, as he just wanted to keep Stone off of him with that guano execution. Mr. George came down there about three times, and I did consent for him to make the deed, provided it would not get me into any trouble about it, and that is all I ever knew about it until I got a copy of this suit. Mr. George did not tell me when he made the deed. He made the deed and filed it of record, and came out there and told me that he had done this, and I made no objection at that time. Mr. George told me that this property would be subject to Forman’s debt. I expect that I knew that Mr. George owed Mr. Whitehurst this debt. Mr. George told me at that time that he was pretty badly involved, and that is the reason that I consented to let him make the deed so as to put title in me over this property to keep the claim that Mr. Stone had off of George until he could take it up. I think that I recall taking a rent note the following year, 1924, payable to me, from one of Mr. George’s sons for the rent. I reckon one of Mr. George’s sons executed a note to me for the year 1924 for rent on that place [the lands in question] ; he delivered this note to me, and I put it up as collateral security with Dr. Middleton for guano. I know Mr. Ii. H. Cowart. I recall an occasion in the early part of 1924 when I was penning up some cattle down about Judge Sheffield’s still, when Mr. Cowart came to see me and asked me.to surrender that note to him. I did not let him have the note. I knew that there had been a sale of the land under Forman’s paper. I did not tell Mr. Cowart that George did not owe me anything else besides the guano debt. In 1924 I took a rent note from young George for a little better than $200. I collected some peanuts on this. The note was collected and applied on a debt owed by Mr. George and myself to some fertilizer company. This guano debt was Mr. George’s debt, but I was responsible for it, as I had indorsed the note for him to get the guano. This guano debt was made in the early part of 1923, before George made me the deed.”

This evidence does not stand alone; but if it needs corroboration, it had corroboration. Besides this, a proper and legal registry of ah instrument raises a presumption of delivery, sufficient to establish the fact unless rebutted. It was so held in the case of Stallings v. Newton, 110 Ga. 875 (36 S. E. 227), which is referred to in the brief of counsel for plaintiff in error. In Rushin v. Shields, 11 Ga. 636 (56 Am. D. 436), it was said: “If a deed be signed and sealed, and declared by the grantor, in' the presence of the attesting witnesses, to be delivered as bis deed, it is an effectual delivery, provided there be nothing to qualify the delivery, notwithstanding the grantee was not present, nor any person in his behalf, and .the deed remained under the control of the grantor. The delivery of a deed may be inferred from its possession by the grantee or from his possession of the land under the deed.” And it was said in Mays v. Fletcher, 137 Ga. 27 (72 S. E. 408), that “The delivery of a deed is necessary to its validity, but delivery may be inferred from various circumstances. . . The mere retention by the grantor is insufficient to overcome the circumstances which afford an inference of the delivery of the deed.” Numerous other decisions by this court might* be quoted from or cited, but it is unnecessary. Outside authorities are to the same effect. See 18 C. J. 208, 212, 214, 413, 438, 439, and the authorities cited in support of the portions of the text here referred to.

The remaining grounds of the motion, which contain exceptions to those portions of the court’s charge set forth in the statement of facts, show no error requiring the grant of a new trial. So far as criticism is made upon the charge that it did not submit the question of George’s insolveney-to the jury and did not submit that question in any other part of the charge, it may be said that the jury would not have been authorized to find that George was solvent. The' uncontradicted evidence in the case is to the effect that he was insolvent. He was a witness for the defendant, and testified that he was insolvent. Another witness who knew his financial condition testified that he was insolvent, and this direct testimony is corroborated by the facts and circumstances set forth in evidence.

Judgment affirmed.

All the Justices concur.