Citizens Bank v. Taylor , 169 Ga. 203 ( 1929 )

Hines, J.

(After stating the foregoing facts.) “A deed to lands in this State must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or some one for him, and be made on a valuable or good consideration.” Civil Code (1910), § 4179. Notwithstanding the provisions of this section, as between the parties a deed is valid though attested by but one witness. Downs v. Yonge, 17 Ga. 295; Lowe v. Allen, 68 Ga. 225. So a deed without witnesses is legal and binding between the parties thereto, and those claiming under them as mere volunteers. Johnson v. Jones, 87 Ga. 85 (2), 89 (13 S. E. 261); Munroe v. Baldwin, 145 Ga. 315 (88 S. E. 947). The requirement of two witnesses is to be taken to apply to a “perfect deed,” which on recordation will be constructive notice to all the world. Gardner v. Moore, 51 Ga. 268, 269. “In order to authorize the record of a deed to realty or personalty, if executed in this State, it must be attested by a judge of a court of record of this State, or a justice of the peace, or notary public, or clerk of the superior court, in the county in which the three last-mentioned officers respectively hold their appointments; or if subsequently to its execution the deed is acknowledged in the presence of either of the named officrs, that fact, certified on the deed by such officer, shall entitle it to be recorded. Civil Code (1910), § 4303. If the deed is neither attested by nor acknowledged before either of the officers aforesaid, it may be admitted to record upon probate by oné of its subscribing witnesses. § 4305. So, to admit a deed to record, it must be a perfect deed. It must be attested by two witnesses. It must be attested or acknowledged, if executed in this State, as provided in section 4303, or it must be probated as provided in section 4305. If a deed purporting to convey an absolute estate in fee to the grantee is properly attested, and thereafter the maker before delivery inserts therein a provision limit-’ ing the estate of the-grantee to her life, and creating a remainder therein in favor of his children, such insertion being made out of the presence and without the knowledge of the attesting witnesses, and the deed so altered is not thereafter attested or its execution thereafter acknowledged, is the record of such altered deed constructive notice to a subsequent bona fide purchaser for value from the grantee, without actual notice of the terms of the deed as altered ? It is true that in those jurisdictions where attestation or acknowledgment is not made essential to the validity of a deed, until a deed is delivered the grantor has full power and control over it, and he can make such alterations in it as he may see fit, for it is not his deed until it is delivered. Complete execution of a deed is consummated only by final delivery. The mere signing of the deed by the maker, and its attestation by witnesses, does not preclude changes in the instrument before delivery. Wetherington v. Williams, 134 N. C. 276 (46 S. E. 728); Malarin v. U. S., 68 U. S. 282, 289 (17 L. ed. 594); 2 C. J. 1239 (§ 115), 3.

In this State, as we have seen, a deed to land as between the parties thereto is good without attestation or acknowledgment by the grantor. In view of this principle, the grantor in the deed involved in this case, as between the parties thereto, could, after signing the same and after its attestation but before delivery, lawfully insert therein the provision limiting the estate granted to his wife for life, and granting the remainder estate in the land conveyed to his children. Whether, after delivery of a deed, the parties thereto may -consent to a material alteration therein, the authorities are in conflict. Some of the authorities hold that even after delivery the parties may consent to a change and redelivery, the new delivery constituting a re-execution, even without a reacknowledgment. 2 C. J. 1240 (§ 116), b; Baker v. Baker, 239 Ill. 82 (87 N. E. 868); Prettyman v. Goodrich, 23 Ill. 330; Abbott v. Abbott, 189 Ill. 488 (59 N. E. 958); Huffman v. Hatcher, 178 Ky. 8 (198 S. W. 236); Woodbury v. Allegheny, 72 Fed. 371; Walkley v. Clark, 107 Iowa, 451 (78 N. W. 70); Respess v. Jones, 102 N C. 5 (8 S. E. 770); Doe v. Roe, 9 N. C. 33 (11 Am. D. 738); Chezum v. McBride, 21 Wash. 558 (58 Pac. 1067); Goodwin v. Norton, 92 Maine, 532 (43 Atl. 111); Eadie v. Chambers, 172 Fed. 73 (24 L. R. A. (N. S.) 879). In most of these eases redelivery of the deed as a new instrument was held requisite. By the weight of outside authorities no alteration of a deed after it has once been delivered will have any effect upon the grantee’s title, whether the alteration be with or without the consent of the parties. Gulf &c. Co. v. O’Neal, 131 Ala. 117 (30 So. 466, 90 Am. St. R. 22); Burgess v. Blake, 128 Ala. 105 (28 So. 963, 86 Am. St. R. 78) ; Gibbs v. Potter, 166 Ind. 471 (77 N. E. 942, 9 Ann. Cas. 481); Stanley v. Epperson, 45 Tex. 644; Jackson v. Jacoby, 9 Cow. 125; Alexander v. Hickox, 34 Mo. 496 (86 Am. D. 118); Hancock v. Dodd (Tenn.), 36 S. W. 742; Booker v. Stivender, 13 Rich. L. 85; Hunt v. Nance, 122 Ky. 274 (92 S. W. 6); United States v. West, 22 How. 315 (16 L. ed. 317); Woods v. Hildebrand, 46 Mo. 284 (2 Am. R. 513); Burnett v. McCluey, 78 Mo. 676; McLindon v. Winfree, 14 N. C. 262; Wheeler v. Single, 62 Wis. 380 (22 N. W. 569); Waldron v. Waller, 65 W. Va. 605 (64 S. E. 964, 32 L. R. A. (N. S.) 284); Carr v. Frye, 225 Mass. 531 (114 N. E. 745, L. R. A. 1917E, 814). Under the rulings of this court that a deed is good without any witnesses, perhaps any material alteration in a deed made with the consent of the parties thereto, and the redelivery of the instrument, might operate to effectuate the changes so made in the instrument, and to convey the property in accordance with such changes; but we deem it unnecessary in this case to decide that question. We have shown that to entitle a deed to be recorded it must be executed in accordance with the requirements of section 4179 of the Civil Code. Among these requirements is the one that the instrument must be attested by two witnesses. We have further seen that to authorize the record of a deed to realty it must be attested by one of the officers named in section 4202 or must, subsequently to its execution, be acknowledged in the presence of either of said officers, or, if not attested or acknowledged before either of said officers, it may be probated as provided in section 4205. The proper registration of a deed required by law to be recorded is conclusive notice of the conveyance to the world. “When a deed is well recorded, everybody must be presumed to know of the record, for certain purposes; but when not well recorded, the presumption of ignorance holds, until actual knowledge or information of the record is clearly proved.” Gardner v. Granniss, 57 Ga. 539, 557. The registry of a deed not attested, or not proved or acknowledged according to law, is not constructive notice to a subsequent purchaser. Herndon v. Kimball, 7 Ga. 432 (50 Am. D. 406) ; Coniff v. Hunnicutt, 157 Ga. 823 (122 S. E. 694).

The alteration made in the deed involved in this case was material. It reduced the absolute estate in fee granted to the wife by the husband, as it originally stood, to a life-estate, and conveyed the remainder to the two children of the grantor. Thus altered the deed became in effect a new instrument, and in this situation it could not be admitted to record without reattestation or reaclmowledgment by the grantor, although as originally attested it could be properly admitted to record. Material alterations made in a deed after due attestation or acknowledgment necessitate a reattestation or acknowledgment, to entitle it to record. 1 C. J. 755 (§ 18), b; Harvey v. Crane, 11 Fed. Cas. 6,178, 2 Biss. 496; Bryant v. Charleston Bank, 107 Tenn. 560 (64 S. W. 895, 897). Where there has been a material alteration in a deed, the deed to the extent of such alteration has become a new deed, and the alteration may be of such character as entirely to change the original deed. In such a case, to give effect to the alteration, the deed should be re-attested and redelivered; and if it has been acknowledged before alteration, it should be again acknowledged. Moelle v. Sherwood, 148 U. S. 21 (37 L. ed. 350); Booker v. Stivender, 13 Rich. 85; Sharp v. Orme, 61 Ala. 263; Webb v. Mullins, 78 Ala. 111; Houston v. Jordan, 82 Tex. 352 (18 S. W. 702); 1 Devlin on Deeds (3d ed.), § 462a. The altered deed in this case, being in effect a new deed, was not so attested or acknowledged as to authorize its record; and this being true; its record would not afford notice to a subsequent purchaser from the grantee for value, without actual notice of the altered instrument. Especially is this so where the remaindermen under this deed were volunteers. It follows that the trial judge erred in directing a verdict in favor of the plaintiffs against the defendants.

Judgment reversed.

All the Justices concur,

except