Buffington v. Thompson , 98 Ga. 416 ( 1896 )

Simmons, Chief Justice.

The facts, so far as material to au understanding of the case, are set out in the reporter’s statement.

1, 2. It appears that when the grandchildren of Thompson filed their suit against R. A. Thompson, he filed what is called in the record a plea in abatement. Subsequently, by permission of the court, he withdrew this plea and filed others. One of the questions at issue on the trial of the case appears to have been whether the deed from the elder Thompson had ever been delivered to R. A. Thompson, his son. The plaintiffs put in evidence the plea in abatement, for the purpose of showing an admission therein by R. A. Thompson that the deed had been executed. The subscribing witnesses to the deed were called, and testified that the grantor signed it in their presence and that they signed it in his presence, but that neither the grantee nor any one representing him was present when the deed was signed, and that the grantor kept the deed in his possession. Upon this state of facts the court ruled out the deed, on the ground that no delivery and acceptance on the part of the grantee had been shown; and to this ruling the plaintiffs excepted.

It was claimed before us by counsel for the plaintiffs in error, that the plea in abatement was changed after it had been filed and withdrawn, that the original plea stated that the grantor had “executed” the deed in question, instead of that he had “attempted to execute” it, as appears in the copy contained in the record sent to this court; and an application was made to us to order the clerk of the superior court to send a certified copy of the original plea in lieu of the one which he had sent. It is doubtful whether the plea is rightly before this court at all, and more doubtful whether this court can take cognizance of the alleged alteration; but be this as it may, the plaintiffs in error, in the view we take of the case, would have no right to reverse the judgment even if they accomplished all they set out to do by suggesting a diminution of tbe record. Treating tbe plea as stating that tbe grantor “executed” tbe deed, and construing this language in the light of the whole plea, we do not think it amounted to an admission that the grantor delivered the deed to the grantee, and that the latter accepted it. Technically the word “executed,” when used with reference to a conveyance, comprehends not only signing and sealing, but delivery. (Anderson’s Law Dic., “Execute”; 7 Am. & Eng. Enc. of Law, p. 117, note.) In a popular sense, however, it means signing and sealing (Id.); and it is in this sense that we think the admission in the plea was made, because it avers in the latter part thereof that the deed had never been accepted by the grantee; and if it had never been accepted, it could not have been delivered, for .acceptance is a part of the delivery of a deed. (See Beardsley v. Hilson, 94 Ga. 50, 53.) We think, therefore, that the plea should not be treated as a conclusive admission by the defendant that the deed had been actually delivered to and accepted by him, nor as rendering him liable to comply with conditions inserted therein for the benefit of other persons. There being no evidence of delivery and acceptance, tire court properly ruled out the deed; and in so far as the case made by the plaintiffs’ petition rested upon the validity of the deed, they had no right to relief.

3. By an amendment to their petition the plaintiffs prayed, that if it should appear that B. A. Thompson had not accepted the deed, he be required either to accept or reject it; they alleged that they were entitled to one eighth of the estate of L M. Thompson, but had received nothing, while each of the other distributees received during his lifetime more than $200; that they (the plaintiffs) were entitled to be made even out of this land, the remaining property of their grandfather, before the other heirs should receive anything; and they prayed that, in the event the land should be sold, they be paid $200 with interest from the death of J. M. Thompson, in preference to the claim of the other heirs. R. A. Thompson answered and admitted that the plaintiffs were entitled to a one eighth undivided ' interest in the land, but alleged that by deeds from the ■other heirs he then owned seven eighths undivided interest therein, and he prayed that the land be sold, because it could not be divided in kind, and that’ the proceeds be divided in the proportion indicated. The plaintiffs demurred to this part of the answer, on the ground that the relief prayed was not germane to the case brought by them. The demurrer was overruled, and the plaintiffs excepted. The plaintiffs, in the amendment .to their petition, having claimed an interest in the land and prayed for its sale, we think the defendant’s answer in the nature of a cross-action, praying for a partition by sale, was germane. Upon the facts in evidence, the verdict was right; and the motion in .arrest of judgment was properly overruled.

Judgment affirmed.