Hoover v. Mobley , 198 Ga. 68 ( 1944 )

The petition, together with the numerous amendments, specified duress and intimidation as the sole ground on which cancellation of the deed was sought. It was dismissed on general demurrer, and in affirming the judgment of dismissal we gave consideration only to the ground on which cancellation was sought. Briefs of counsel in support of the motion for rehearing urge for the first time that the petition should not have been dismissed, (1) because the official witness to the deed was not in fact present when the same was signed by the grantor, and (2) because both of the witnesses to the deed were pecuniarily interested in the transaction, and, hence, were disqualified as witnesses. While neither of these facts was made a ground for cancellation in the petition, and therefore, was not considered in our opinion, yet, in view of the earnestness with which they are now urged, we think it well to state that had they been properly pleaded as grounds upon which cancellation of the deed was prayed, they would not have constituted legal grounds for such relief. While it is declared in the Code, § 29-101, that "A deed to land must be in writing, signed by the maker, [and] attested by at least two witnesses," under repeated rulings of this court this is a statement of a requirement of law necessary to be met in order to entitle a deed to record. It does not declare that, unless so attested, a deed is void, nor does the language of the statute have such meaning. In the absence of any witness whatever, a deed signed by the grantor is binding between the parties thereto. In Johnson v. Jones, 87 Ga. 85 (2) (13 S.E. 261), It is ruled: "A deed without witnesses is legal and binding between the parties thereto and those claiming under them as mere volunteers." The first headnote in Howard v. Russell,104 Ga. 230 (30 S.E. 802), is: "A deed to land, though not attested as required by law, conveys the title as against the grantor and his heirs." To the same effect see also Downs v.Yonge, 17 Ga. 295; Gardner v. Moore, 51 Ga. 268; Lowe v. Allen, 68 Ga. 225; Munroe v. Baldwin, 145 Ga. 215 (88 S.E. 947); Citizens Bank v. Taylor, 169 Ga. 203, 207 (149 S.E. 861, 67 A.L.R. 355). The penalty for failure to execute the deed in the manner prescribed by the statute is a refusal to admit the same to record.

Counsel argue that pecuniary interest disqualifies one from witnessing a deed, and cites in support of this argumentBetts-Evans Trading Co. v. Bass, 2 Ga. App. 718 (59 S.E. 8), Nichols v. Hampton, 46 Ga. 253, and Southern Iron c.Co. v. Voyles, 138 Ga. 258 (75 S.E. 248, 41 L.R.A. (N.S.) 375, Ann. Cas. 1913d 369), all of which support the argument and are authority to the effect only that such an interested witness is disqualified because of his interest. The contention is sound, but it constitutes no valid legal attack upon the deed here involved, even though it be conceded that both witnesses were pecuniarily interested in the transaction.

Rehearing denied.