Jordan v. Pollock , 14 Ga. 145 ( 1853 )

By the Court.

Starnes, J.

delivering the opinion.

It is alleged, that the Court below erred in refusing the motion for a new trial, on various grounds, which we will review in the order in which the points were presented during the trial.

[1.] During that trial, one Garrett Smith, who was a distributee of Risdon Smith’s estate, was offered as a witness by the plaintiff, (in the Court below,) who was the administrator on that estate.

Upon objection being made, on account of his interest, a release was tendered. Objection was then taken, that the witness was still interested to the extent of the costs of this suit. The meaning being, we suppose, that he was interested to prevent the fund, out of which he was to have distribution, from being diminished, by the payment of the costs in this case. The Court overruled the objection, deciding that the interest was too remote.

Now, the rule is, that the interest which disqualifies, shall be a present, certain and vested interest; and not uncertain or contingent — that the witness shall either gain or lose by the direct legal operation of the judgment; or that the record may be used in some other action, for or against him. If the interest be of a doubtful nature, the objection goes to his credit, and not to his competency.

We are not sure, but that the interest here, being contingent, is too remote. By the release, he has deprived himself of any gain, by reason of a judgment in favor of the administrator.— It is true, that in the contingency of a judgment against the administrator, the costs, being paid out of the estate, the witness’ interest may be affected to this extent. Thus he may be said to lose in one event; but he cannot be said to gain in any event, unless the saving of the costs to the estate, may be said to be a gain to.him.

However this may be, we will lay no stress on it; because, we are satisfied, from the investigation which we have given to this case, and for reasons which will hereafter appear, that no ■injustice was done by the admission of' Garret Smith’s te'stimóny; and that the verdict should have been as it was, without it. Consequently, we should not feel it our duty to reverse the judgment on this ground, even if the testimony was improperly admitted. Such has been the uniform rule of this Court. — • (Stephens et al. vs. Crawford, 1 Kelly, 580. Arrington vs. Cherry, 10 Ga. R. 429.)

After the plaintiff in the Court below, (the defendant here) had, in the first instance, dosed his case, the defendants (plaintiffs in error) moved for non-suit, which was refused by the Court. As the grounds of this motion enter into the assignments of error, wc will proceed to consider them, as they were presented.

[2.] It was insisted that no sufficient evidence of a delivery of the deed to this tract of land had been adduced.

Upon this question, we remark, that prima facie evidence of delivery, was fairly to be derived as an inference, from the acts and words of William Smith, taken with the subsequent possession of the land by Risdon.

Thomas Speight had proved, that after all the deeds were executed, Wm. Smith told Risdon “ To take them, and put them away until he called for them, for he was not ready to turn over the property they conveyed at that time, as the crop was not housed-”' And other testimony showed, that Risdon was, after this, in possession of the land.

Here, certainly, was a delivery of these deeds. But it is insisted, that it was not an absolute delivery. If it were not an absolute delivery, it was a delivery to take effect upon conditions — that is to say, an escrow. No conditions, however, are here specified. The grantor says, that he is not ready to turn over the property, it is true- But he says nothing which, in law, can be considered as a technical limitation upon the delivery, so as to fix the time, upon the happening of a certain contingency, when the delivery is to take effect. And the grantees had nothing to do on their part, in order to make the deed absolute, which is usually the case, where the deed is delivered as an escrow. (Austin vs. Hall, 13 John. 285.) Under these circumstances, wo fear, that to hold a transaction like this, such a limitation of delivery as amounts to an escrow, would be to establish a loose and inaccurate precedent.

If, however, we be mistaken in this, it can only be, as to the deeds which were delivered to Risdon for the other grantees.— The delivery of his deed to him could not have been in the nature of an escrow ; for a stubborn principle of law interferes to prevent this. One of those stern, technical rules, which the law, generalizing for the public good, establishes, as controlling intention, and serving as lights and guides to the wayfarer in search of legal rights. That rule is, that a deed can never be delivered to the grantee himself, as an escrow ; but if intended to operate as such, must be delivered to a third person for him. If a deed be delivered to him, the law, for wise purposes, and on just principles, vests the interest conveyed, instantly in him. (Shep. Touch. 55. 7 Vin. Tit. faits O. pl. 4. Jackson vs. Catlin, 2 John. 259, per Kent, C. J. Gibson vs. Partee, 1 Dev. Batt, 530.) Here, the delivery was to Risdon Smith himself, and it might have been properly looked to as absolute.

[3.] An order from the Court of Ordinary was not needed, that the administrator might bring his suit, as was also insisted on the motion to non-suit.

The point made here possibly springs out of a misconception of the decision made by this Court, in the case of Carruthers vs Bailey, 3 Ga. R. 105. While that decision [takes the position, '(which was no new doctrine in our State,) that the Common Law of force with us, vests the title to real estate in the heirs, at the death of the ancestor; and asserts that the administrator can control it only for payment of debts, or distribution ; it, at the same time, expressly holds, that for the purposes of distribution, such real estate is on the same footing with personal estate; and that “ The title of the heirs is subservient to the right of the administrator, to have the possession of the land, to enable him to pay debts and make distribution,” &c.

When, therefore, the administrator sues a stranger, the presumption arises, that he is acting in subordination to his authority in the premises; that he is endeavoring to recover for the purpose of paying debts, or distributing ; and no proof of authority from the Court of Ordinary is needed. It would be different perhaps, and so this Court has held, (at p. Ill of the case last cited,) if he were suing the heirs.

In this very case of Carruthers and Bailey, we remark further, this Court holds, in effect, that the administrator may sue in ejectment, without an order from the Court of Ordinary; and in Cofer, adm’r., vs. Flannagan, 1 Kelly, 538, it is said that the right of the administrator to sue for land is established.

[4.] On the next point taken in the motion for non-suit, viz: that actual notice to the purchaser, Walker, was not proven, we have several remarks to make.

It is true, that if the plaintiffs in error, or either of them, had purchased the land from William Smith, without actual notice of the voluntary conveyance to Risdon, they should have been protected in their possession.

It is important, however, to a right consideration of this point, that we should first understand what clearly and definitely constitutes actual notice.

The first broad elementary distinction, to which we call attention, is that notice is actual, when it is directly and personally given to the party to be notified; and constructive, when the party, by circumstances, is put upon inquiry, and must be presumed to have had notice; or, by judgment of law, is held to have had notice. (Powell on Mortg. 561, 662. 16 Vin. Abr. 2. 4 Kent Com. 172.)

Again, constructive notice is hejd to be, “ In its nature, no more than evidence of notice, the '(presumption of which is so violent, that the Court will not allow of its being controverted.” (3 My. & K. 719. 3 Sugd. on Vend. 453.)

This first definition of constructive notice, it will be seen, involves such notice as presumptive knowledge, from circumstances which put, or should have put, the party upon inquiry; as well as the latter, which is entirely an inference of law, and may be supposed to relate generally to notice, which is legal inference, from some such source as matter of registry, or record. With great deference and respect we say it, there does not seem to be sufficient and satisfactory accuracy in the terms of these definitions; and confusion has naturally resulted. It will be found, that some of these very authors and Courts, who draw these distinctions, and speak of all notice which is not proven by evidence of direct personal communication with the party as constructive notice; yet go on, sometimes, to call that actual notice, which is proven only by circumstances sufficient to put the party upon inquiry; and thus, parties and counsel, and Courts who follow them, may be puzzled to make out the correct distinction.

In the case before us, the ingenious counsel, following the general and more usual definition first stated, insist that, inasmuch as this Court, in the case of Fleming vs. Townsend, 6 Ga. P. 103, has held that a purchaser, without prior actual notice of a voluntary conveyance, shall be protected; and that “ Constructive notice will not do;” and, as according to the above definition, all notice, not positively proven to be personal, is constructive notice — so in this ease, as no such personal notice is positively proven to Walker, he must be protected.

It will be seen, however, as we have suggested, that these elementary dicta, and the cases cited, support the doctrine that that notice is sufficiently actual, which by the proof, either positive or presumptive, brings home to the purchaser such knowledge of the circumstances, as authorizes the clear and satisfactory conclusion, that he had notice of the prior incumbrance ; or such as renders proper the conclusion, that he was, or should have been put upon inquiry. That such notice is, in the language of Sir Edward Sugden, “good notice ;” and is so, because it authorizes a conclusion which affects the conscience of the purchaser, and makes it a legal fraud in him to buy, under the circumstances.

Loose, suspicious, vague rumors or reports will not do, say these writers ; but the knowdedge must be brought home to the party, so that mala fides marks the transaction, if he after-wards buy. (Sugden on Vend. 452, 467. Peebles vs. Peeding, 8 Serg. & R. 484. Jones vs. Smith, 1 Hare, 55. La Neve vs. LaNeve, Ambler, 436.) See also, the able notes on the last case in 2 White & Tud. L. C. in Eq. 130, 131, 132.

Hence, when our oAvn Court adjudicates this point, it so draws the distinction between personal notice, proven either by positive or presumptive evidence, and notice which is a mere legal presumption, and which does not, as a consequence, necessarily affect the conscience of the party. (Fleming vs. Townsend, 6 Ga. R. 103.) And the intelligent editor of White & T. Lead. Cases, (2 W. T. L. C. 174,) commenting on this last case, shows that this was the view taken by this Court. Chancellor Kent, too, sanctions the same rule; and says, that if the conscience of the purchaser is thus affected by proof, “ It is to be understood as the true construction of the rule, that implied or presumptive notice, may be equivalent to actual notice.” (4 Kent Com. 172.)

We will take leave of this point, by remarking, that it Avould, perhaps, be more accurate to say, that actual notice, in the case we have been considering, is shoAvn, when the proof, positive or presumptive, authorizes the clear and satisfactory conclusion, that the purchaser had knowledge of the incumbrance, or would have had it, if he had not wilfully declined to search for it, and thus' his conscience is affected by it; and that constructive notice, is that which arises out of a legal inference, or presumption strictly speaking, such as notice from a register, record, or some such matter; and which does not affect the conscience of the purchaser, because, notAvithstanding the legal presumption, he may never have had absolute knoAvledge of the record, or been put upon inquiry in relation to it.

On looking to the testimony in this cause, we find a case Avhich Aye think brings home to the purchaser, very clearly, the personal knoAvledge of the conveyance to Risdon Smith; for Ave find Tooke proving, that Avhen conversing with Walker about the purchase, the latter said to him, that he had taken legal advice on the subject of the difficulty about this land, and that he thought he had bought a good bargain.

Noav, to Avhat difficulty as to this land, Avas reference thus made ? There is no pretence, that it was to any other, save the incumbrance of the conveyance to Risdon; and all the facts of the case lead to this presumption. If he had taken legal advice then, as to this difficulty, must he not have heard, either before or through consultation with his learned counsel, that which put him upon actual notice of this deed; or at all events, which made it his duty to inquire into the matter before he purchased ? Nay, was not the presumption very strong, that he did so inquire ? Besides, it appeared, according to his own report, that he bought a good bargain; and this circumstance was significant in this connection.

These being our views, we think the Court committed no error in overruling the motion for non-suit.

[5.] Neither, in our opinion, did the Court commit error when opening the case, after plaintiff had closed, and permitting the introduction of certain deeds. This was a matter of practice, which must be more or less always within the discretion of the Court, and may be safely reposed there. We think the practice is not to be approved, and should be discountenanced by circuit Judges, as it leads to indefinite delays, and may sometimes open the door to unfair advantage. But we see no evidence, of any such advantage having been taken here, as in the case of Stewart vs. Grimes and another, Dudley 209, where the party had his testimony in Court, and as was said in this argument, “ as it were gambled for the conclusion.” So far as appears in this case, the omission of the testimony was through no improper motive, and the discretion of the Court in admitting it, was not abused or capriciously exercised.

[6.] Nor do we think the objection to these deeds as evidence tenable. They were relevant and material, as serving presumptively to show that the deed to Risdon had been delivered; because these similar deeds, executed at the same time by William Smith, to other portions of his property, and which had been handed to Risdon with this deed, had been delivered to the grantees.

[T.] After, the cause vas submitted to the jury, .the Court refused to charge, (when requested by the plaintiffs in error) that the circumstances under which the deed was delivered to Risdon, and the possession of Risdon did not amount to proof of a delivery; but instructed the jury, that it was some evidence when coupled with other evidence, such as possession, &c.

That this was substantially correct, we have already shown. That it was so, may bo manifested, also, by reference to some of that other evidence, to which allusion was made by the Court below, viz: the possession of the other heirs under the deeds specified; and Risdon’s statement, that his father had paid him for the land in horses, mules, &c.; which last circumstance was proven by McKinney. All of which taken together, constitutes strong evidence of delivery.

[8.] We hold also, that the charge of the Court, as to notice, viz: that actual notice might be inferred by the jury from the facts in evidence, which might be sufficient to convince them that defendant had actual notice, was for the reasons already given, substantially correct. To these reasons it may be added, that at the time the Court charged the jury, the fact of inadequacy of consideration (such as was insisted on) was before them, and also the character of that consideration, viz: a payment in three annual instalments — from both of which it was argued, that the speculative character of the transaction appeared, and therefore, notice should be presumed.

It is true, that if there was inadequacy in the consideration specified, it was a circumstance which might authorize the presumption insisted on. So too, was it true, that “ to entitle a purchaser to protection, the consideration must not only be valuable, but must be wholly or partially paid.” Vattier vs. Hinde, 7 Peters, 271, per Chief J. Marshall. Williams vs. Hollingsworth, 1 Strob. 103. Bush vs. Bush, 3 Ibid. 131. Doswell vs. Buchannan’s executors, 1 Speer Eq. 20. 2 Wash. 141. 8 Wheat. 421. 3 Serj & R. 423.

If then, the terms of this deed authorized doubt or suspicion to say the least, by reason, that the consideration was slight, and the payments so arranged that the purchaser might take the chances of succeeding in a suit at Law, before having to pay, this was proper for the . consideration of the jury in determining the question of actual notice, and the Court was correct in referring the matter to their consideration.

[9.] We also approve the instruction which was given to the effect, that it was not in the power of Risdon Smith to re-vest the land conveyed to him, by re-delivering the deed to his father, after it had been once delivered to him, or by cancelling or otherwise destroying it; but that the title could be conveyed out of him to William Smith — only by deed with the usual solemnities.

Ancient elementary dicta, opposed to this instruction of the Court, have been and may be found. Shep. Touch. 70. Co. Litt. 119, b. Dyer. 59, 112. Cro. Eliz. 483. But the modern decisions almost invariably have held, that “ The mere cancelling of a deed will not divest land, which has once vested by transmutation of possession.” A mass of cases might be cited, but I can afford room for reference to a few only. Boston vs. Carlisle, 2 H Black. 263. Roe vs. Archbishop of York, 6 East. 86. Dana vs. Newell, 13 Mass. 498. Holbrook vs. Tirrell, 9 Pick. 108. Boisford vs. Morehouse, 4 Conn. 550. Gilbert vs. Bulkley, 5 Conn. 262.

The early dicta to which reference is made, are older perhaps, than the Statute of Frauds, which has been regarded as controlling this question; and hence the apparent conflict of opinion and of cases. To this effect speaks Mr. Justice Sewell, when he says, “ In the ancient books are many dicta respecting deeds, which in modern cases have been either neglected or exploded — or so explained, as to be rendered consistent with the security of titles and demands depending upon written evidence, &c.” Hatch et al. vs. Hatch et al. 9 Mass. 311.

On the whole, we are satisfied, that the Law was stated to the jury with sufficient fairness, and that the verdict of the jury (without reference to the testimony of Garrett Smith) ought to have been what it was; and that, therefore, a new trial should not have been granted.