Read v. Gould , 139 Ga. 499 ( 1913 )

Beck, J.

1. This case was formerly before the Supreme Court. 134 Ga. 524. The trial court sustained a general demurrer to the petition, and this judgment was reversed. In the opinion it was said that the allegations were somewhat meager, and did not disclose distinctly whether the written agreement touching the right of pasturage, etc., was executed prior to the deed, and merged in it, or whether it- was executed subsequently to the deed conveying the lands in fee simple, or simultaneously therewith; but that apparently the two apers were executed simultaneously, and were to be construed as parts of one and the same transaction. It was said: “Considered as a whole, the defendant undertook to pay to the plaintiff the sum of $400 whenever he should ‘terminate this agreement’ relative to the rights and privileges of the petitioner as to pasturage and hunting upon said land; and when he sold the lands to a third person and expressly conveyed the rights of pasturage and hunting, generally and without limitation, he will not be heard to say that he has not brought about the contingency upon the happening of which the $400 was to become due to petitioner.” It was further held that the plaintiff, by suing, elected to treat her rights and privileges of pasturage and hunting as terminated; and that the plaintiff was entitled to recover the $400, “unless other facts not appearing upon the face of the petition affecting or destroying the validity or the binding effect of the agreement signed by the defendant should appear upon the trial.”

2. According to the defendant’s own testimonjr, though a parol agreement liad been made to sell him the land at $2 per acre, in closing up the transaction, taking the deed, and paying the money, it was stated that the grantor wished to reserve rights of pasturage and hunting, and that he agreed thereto, and executed the instrument on which this suit is based. IIe could not remember whether the paper or the deed was signed first, but it was evident from his own testimony that the whole, matter constituted a single transaction, and that the papers were executed simultaneously, in the eye of the law. This being so, as between the parties thereto, the deed and the written agreement given by the grantee to the grantor, which stated on its face that it was given in consideration of the sale of the land, constituted one contract. The agreement by the grantee for the grantor to have certain privileges of pasturage, hunting, and fishing, reserved them to her as completely as if that agreement had been inserted in the deed itself, so far as the parties were concerned. A contract does not have to be contained in a single paper. Where it is contained in two papers, one a conveyance, and the other an agreement that the grantor shall retain certain rights of use, both papers being executed simultaneously as part of one transaction, and the agreement referring to the conveyance, as between the parties they will be construed together. So construed, the paper which was executed in this case by the defendant (the grantee) to the plaintiff (the grantor) was based on a legal consideration. The agreement therein became one of the terms of the contract between the parties, and it could no more be repudiated by the defendant (the grantee), by declaring that he had received nothing in payment for the making of the paper, than if the deed itself had contained the reservation of the same rights to the plaintiff (the grantor). Had this provision been included in the deed, it would hardly be contended that the grantee could rid himself of it by being allowed to testify that such reservation was without consideration. Harrison v. Tate, 100 Ga. 383 (28 S. E. 227); Wellmaker v. Wheatley, 123 Ga. 201 (51 S. E. 436); Baker v. Davis, 127 Ga. 649 (7), 650 (57 S. E. 62); McAuliffe v. Vaughan, 135 Ga. 852, 853 (70 S. E. 322, 33 L. R. A. (N. S.) 255, 22 Ann. Cas. 290); 9 Enc. Ev. 362, 364; 4 Id. 200; 9 Cyc. 580; 4 Wigmore on Evidence, § 2433; Pierce v. Tidwell, 81 Ala. 299 (2 So. 15); Carr v. Hays, 110 Ind. 408 (11 N. E. 25); Dillingham v. Estill, 33 Ky. 21. This does not conflict with the ruling in Goette v. Sutton, 128 Ga. 179 (57 S. E. 308). In that ease it was not sought to destroy the force of a conveyance or an agreement by showing that there was no consideration for it; but, where it was deemed legitimate to inquire into the consideration of a deed which conveyed two pieces of land, and the consideration was stated in a gross sum, it was held that the amount applicable to each could be shown by parol. From what has been said above, it will appear that the presiding judge erred in admitting the evidence of the defendant that he received nothing in payment for the paper which he executed to the plaintiff, reserving to her the right of pasturage, etc. He also erred in submitting to the jury the question of whether the paper was a nudum pactum.

3. The deed from Gould, the defendant, to Mrs. Phillips conveyed the land and recited that the timber on’ the land had previously been conveyed to one Savage, with timber rights and privileges to continue for 25 years, and with rights of ingress, egress, etc., in connection therewith, and it was provided that the deed to. Mrs. Phillips did not convey such timber. It then proceeded; “Nevertheless the said E. W. Gould, for himself and his heirs and assigns, reserved and does hereby convey to the said Ophelia E. Phillips the right to pasture live stock on said land, the right to cut small timber sufficient for fence-posts to be used on said land, and the right to shoot or trap game and fish upon said lands or otherwise lawfully capture the game.” It appeared that the description in the deed as originally drawn was typewritten, and that the words “reserved and” were interlined with pen and ink.

There is nothing ambiguous or doubtful' about the meaning of these clauses in the deed. They recite that the timber and certain privileges had been conveyed to Savage; that Gould had reserved certain rights which he “does hereby convey” to Mrs. Phillips. To admit parol evidence to show that this did not mean to convey such rights to Mrs. Phillips, but to reserve them against her, would not be to construe the deed but to destroy one of its express terms. It was error to admit evidence to sustain such a construction, and also in the charge to submit that theory to the jury. Even were there an ambiguity in the clause above quoted, it could not be explained by admitting evidence of the defendant (the maker of the deed) as to his mere unexpressed intent.

4. According to the evidence of the defendant, he and Phillips entered into an agreement, before the purchase of the land, to the effect that they should purchase title to the land at $2 per • acre, sell the timber to Savage for the same amount, and deliver the land to Phillips. The defendant also testified that Phillips negotiated with the owner of the land, the present plaintiff, and that the title was taken in the name of the defendant, because he preferred it. In referring to paying a part of the purchase-price for the land, which was not paid in cash, he said: “I think we gave her a due-bill for five or six hundred dollars. I can not remember the amount that was due. In fact we didn’t have sufficient funds in hand, and we were wanting payment from Savage for sufficient money to pay her.” It thus seems from the defendant’s evidence that Phillips had an interest in the transaction, and that a conveyance to him would not have been without a consideration. If he saw fit to give his interest or right to his wife, and have a deed made to her, instead of to himself, the fact that she paid nothing to the defendant would not make the conveyance from him to her invalid as being a nudrim pactum. But even had the conveyance from the defendant to Mrs. Phillips been without consideration, when the' defendant conveyed the land to her, including the right of pasturage, etc., which he had reserved in conveying the timber to Savage, he could not defend against a sri.it by the plaintiff, based on his contract with her, by saying that he had conveyed the rights covered by that contract, and thus elected to terminate it, but had done so without consideration. This is not an effort on his part to cancel that deed or to reform it. Neither is it a contest between the plaintiff, as the holder of the contract, and the grantee under the defendant. Perhaps the plaintiff might have claimed that Mrs. Phillips took with notice of the plaintiff’s rights under her contract with the defendant, and might have sought to enforce such rights as against the title acquired by Mrs. Phillips. But she was not compelled to do so. When the defendant made a conveyance of the rights of pasturage, etc., which he had previously contracted should belong to the plaintiff, she was at liberty to treat this as a choice or election on his part to terminate those rights and pay $400, as provided in the contract. This was ruled when the ease was formerly here. The evidence of the defendant showed that, very shortly after he made the deed to Mrs. Phillips, the plaintiff demanded the $400 under the contract.

It was error to admit evidence to the effect that Mrs. Phillips paid the defendant nothing for the land, and to charge the jury as to the relative merits of an unrecorded conveyance for value and a subsequent conveyance without valuable consideration.

5. Objection was also made by the plaintiff to the introduction by the defendant of the agreement by the plaintiff, made about two years after the conveyance by the defendant to Mrs. Phillips, in which the plaintiff recited that Mrs. Phillips had purchased from the defendant without notice of her rights and desired to convey to a third person, and that the plaintiff disclaimed any rights as against such third person. When the defendant conveyed away the rights of pasturage, hunting, and fishing, and the plaintiff elected to treat this as a termination of such rights under her contract with the defendant, and to demand of him the $400 provided by the contract to be paid upon the happening of such a contingency, she could not also claim that those rights were still existing. Her declaration that they were not so did not alter her position, but was in accordance with it. It was expressly stated, in the writing which she then gave, that she did not in 'any wise release her claim against the defendant. Such writing did not conflict with her claim against the defendant, or furnish any defense thereto; and it was error to admit it in evidence, over objection.

The motion for a new trial contains 32 grounds; but the foregoing discussion covers the substantial points raised. It would be of no service to take up each ground and discuss it separately.

Judgment reversed.

All the J'iastices concur.