Witt v. Sims , 140 Ga. 48 ( 1913 )

Lumpkin, J.

(After stating the foregoing facts.) The paper involved in this case was plainly not one which the clerk of the superior court was authorized to record on the deed books of the county. It was a mere agreement between a landowner and a real-estate broker in regard to giving the latter the right to sell the land, or paying him a commission, if the land should be sold by him, the owner, or any other person. It did not purport to convey any title, interest, or easement in the land, or to create any lien upon it. If it had been otherwise a recordable paper, it was not properly attested or probated for record. What is said of the paper itself applies with double force to the entry upon it purporting to transfer an interest in the contract to another.

It was conceded by counsel for the defendants that the paper was not recordable, and ought not to have been entered on the record of deeds. But it was argued, that, if a clerk should cumber the books for the recording of deeds by entering on them papers which should not he recorded, in order to obtain fees, the county authorities would have the right to prevent such a use of the county’s property. Perhaps they would. But the registration laws arc for the benefit of the public, and the county authorities have no power to change them; nor is a property owner who may be damaged by an unlawful record without remedy, upon a proper case made. In New York there is a statute touching the cancellation of any recorded instrument relating to realty not entitled to record by law. In Georgia there is no express statute on the subject. Under some circumstances, doubtless, an entry of cancellation might be required by a court having equitable jurisdiction. But in this case the allegations make no case for cancellation of either the instrument or the record of it. They do not bring the case within Civil Code section 5465, touching proceedings quia timet generally; nor do they show any cloud upon the title of the plaintiff, giving a right of cancellation under Civil Code sections 5466, 5468.

The cases of Thompson v. Etowah Iron Co., 91 Ga. 538 (17 S. E. 663), and Hairalson v. Carson, 111 Ga. 57 (36 S. E. 319), were relied on. While much that is said in the decisions in those cases is still the law, and a part of that in the one first cited has been codified (Civil Code, § 5468), it may be well to note, in connection with this, that the rule that where the invalidity of an instrument appears on its face, this alone will render cancellation unnecessary, has been abrogated by statute. Civil Code, § 5466.

The bare allegation- that a promise to give a broker the exclusive privilege of selling property, or to pay him commissions if it should be sold by another, was made without present consideration, does not make a case for resort to a court having equitable jurisdiction, for cancellation. Nor do the superadded allegations of conclusions that the paper is iniquitous and the plaintiff has no other remedy, with no facts to support such conclusions, make the case one for equitable relief.

Judgment affirmed.

All the Justices concur.