Pappa v. Pope , 22 Ga. App. 484 ( 1918 )

Broyles, P. J.

Under the particular facts of the case the court erred in dismissing the amended petition on general demurrer.

Judgment reversed.

Bloodworth, J., concurs. Harwell, J., concurs du'bitante.

By amendment it was alleged: “25. The said contract was fully known and authorized by the said plaintiff’s wife,- Mrs. Katie ■ Pappa, and as to her property he acted as her agent and in her behalf, and she was ready and willing and had agreed to convey said property at any time to the said defendant, or otherwise as said defendant might direct, and petitioner was thus at all times ready, willing, and able to deliver good title to said property to defendant, title to which it was understood and agreed was in the wife of petitioner. 26. Petitioner’s said wife had, at all the times mentioned in the petition, herself good title to said property averred to be in her, she having been in adverse possession thereof under color of title, to wit, a deed of gift from petitioner, for -about twenty years, and those under whom she claims having had such possession under color of title for more than forty years, and there being no adverse claimants of title. 27. Petitioner had in himself, at all the times mentioned in the petition, good and merchantable [title?] to the property to be conveyed by him under said contract, and was ready] willing, and able to convey the same to said Pope,, having title to each of said properties by regular chain of recorded conveyances from the State down to' himself, and having also been in possession of each under color of title and adversely for more than seven years, and his predecessors in title having had such adverse possession for more than forty years under color of title. .28. During the month of August, 1916, after petitioner placed his conveyance, in the hands of defendant, the defendant employed said Latimer and the Atlanta Title Guaranty Company to investigate petitioner’s titles upon the records. As a result, defendant and his said agents requested of petitioner-rectification of the title above mentioned as being in Mrs. Katie Pappa, in three'respects'only, to wit: 1. It was complained that'three deeds in the chain of title, all dated prior to 1879, were defectively recorded, in that the caption was written DeKalb county and they were attested by an officer of Fulton county. 2d. That the eonveyánce claimed to be into one Jesse Boob, or Baub, was recorded as into Jerre Boob. 3d. That no proof was furnished as to the heirs of Jesse Baub. Nó other complaint was made of'this title, and no complaint at all of any other title at +his time. 29. Petitioner thereupon (though the first-mentioned complaint constituted no defect, he having said original deeds and they all being over thirty years old, and there being no" claim of any conflicting title) sought and found one of the subscribing witnesses and had said deeds probated for record, one in a few days and the others within a reasonable time. 30. As to the second complaint, he produced the original deed, which read' to Jesse Banb really, and the same was recorded accordingly. 31. As to the third defect, he procured the affidavit of . . a relative of Jesse Baub’s family and accounted for his heirs at law, and showing that none of them could claim the property; the same having been sold under order of the court of ordinary of DeKalb county, as appeared by the records, in 1897, as the property of Jesse Baub, to pay taxes and other debts, to George Hillyer, and passed from him to petitioner, and thence to petitioner’s said wife, all title of said heirs being thereby divested, independently of prescription, 32. Said Pope at no time made any objections to said title'on account of the title being in the wife of petitioner, or on account of ’her not having actually executed any deed or procured any order of the superior court, if such were necessary; and such contention was not made in the answer of defendant filed in this case, nor mentioned till the week preceding this November term of this court to petitioner’^ attorney and in argument before the court. Petitioner was given no opportunity to do anything in reference thereto, if anything be necessary to be done, but defendant’s making other objections aforesaid and making no complaint as to this waived any ground of complaint thereabout. . 33. Defendant, instead of making further complaint about said title then, during the month of September, 1916, said the title to the property described as being on Larkin street was not good, but, on inquiry by petitioner as to the trouble found, defendant refused to give any information thereabout, but declared he would in no event proceed with the contract, though petitioner offered to meet and exchange the deeds called for by their contract, and otherwise to perform on his part; all within a reasonable time as aforesaid. It was then that petitioner employed attorneys, for himself to endeavor to find any defect of which complaint might be made, as alleged in the petition, they finding none. 34. As to the other properties contracted to be sold, no complaint of the title was made prior to said absolute refusal by defendant to proceed, and pending .this suit defendant has in writing, through his attorney of record, stated that no defect in them was found or insisted on.”

The petition as amended was dismissed on demurrer, on the ground that it sets forth no cause of action.

Samuel E. Sibley, W. A. Slaton, for plaintiff, cited:

Cowdery v. Greenlea, 126 Ga. 786; 39 Cyc. 1981, 1983, 2079, 2081, 1541, 1984, 2089, 2096, 2103, 2105, 2110, 2112, 2114, 1988-9; Horne v. Rodgers, 113 Ga. 227; Booth v. Saffold, 46 Ga. 278 (2); Irwin v. Askew, 74 Ga. 582 (4); Mobley v. Lott, 127 Ga. 572; Civil Code (1910), § 4402; Wells v. Smith, 54 Ga. 263; Butler v. Frank, 7 Ga. App. 655 (2), 657; Hawkins v. Taylor, 61 Ga. 171 (2); Civil Code (1910), § 3609 (3).

W. Carroll Latimer, R. C. Norman, for defendant:

Maupin on Marketable Title (1907), 704, 710, § 281; Morgan v. Morgan, 15 U. S. 299; Danforth v. Perry, 20 Ill. App. 130; Cornell v. Andrus, 36 N. J. Eq. 321; Pfaff v. Cilsdorff, 50 N. E. 670; Wellmaker v. Wheatley, 123 Ga. 201; Civil Code (1910), § 4638; Tippins v. Phillips, 123 Ga. 415; Prater v. Sears, 77 Ga. 28; Marchman v. Fowler, 145 Ga. 682; Cowdery v. Greenlea, 126 Ga. 790; North Highlands Land Co. v. Holt, 144 Ga. 43; Civil Code (1910), §§ 3009-10, 4152; Cain v. Ligon, 71 Ga. 692; Sasser v. Sasser, 73 Ga. 275.