Tune v. Beeland , 131 Ga. 528 ( 1908 )

Evans, P. J.

Homer Beeland brought suit against -W. N. Tune, to recover a small piece of land specifically described, and located within the east half of „ lot 171 of the 14th district of Taylor county. From the abstract of title attached to the petition it appears that plaintiff claims that the defendant Tune, being the owner of an undivided half interest in the eastern half of lot 171 (which embraced the premises in dispute) on November 9, 1898, conveyed it to Cora Trapp, who on August 24, 1899, conveyed it to the plaintiff. The abstract of title to the other half interest of the eastern half of lot 171 recited a deed from Hattie E. Cosey, W. F. Williamson, and Edgar W. Williamson to E. S. Beeland and Homer Beeland, dated December 1, 1903, and a deed from E. S. Beeland to Homer Beeland, January 2, 1905. The defendant filed a plea, admitting his possession of the land, and denying that the plaintiff had title thereto. On the trial of the case the defendant offered the following amendment to his plea: “Now comes the defendant, and for further answer says: 1. The deed from defendant to Cora Trapp was executed and delivered under an express agreement that so soon as defendant should pay a debt which defendant was then and there- owing to one C. C. Souder, amounting to $16, that she would reconvey to this defendant the land so conveyed. That defendant in a few days paid said debt, and that thereupon said Cora Trapp agreed to reconvey, and attempted so to do, and thereupon instructed the clerk of Taylor superior court to cancel said deed. 2. That there was no other or further consideration of any kind whatever for the execution-of said deed by this defendant, and that said Cora Trapp thereafter held said property under an implied trust to reconvey the same to this defendant. 3. That said Homer Beeland had full notice of said agreement between defendant and said Mrs. Cora Trapp, and himself carried the money to said Souder and paid the same. 4. That said deed from defendant to Cora Trapp and the deed from Cora Trapp to plaintiff should be decreed by the court to be surrendered up and canceled, and the title to the property sued for should be decreed to be in this defendant. Wherefore he prays that said deeds be decreed to be delivered up and canceled, and the title to the land above described be decreed to be in-this defendant.” The court refused to allow this amendment, and exception is taken to this ruling. The case proceeded to trial, and upon the conclusion of the evidence the court directed a verdict for the plaintiff, and this action of the court is assigned as error.

1, 2. The plaintiff in error contends that the facts pleaded in the proffered amendment do not authorize an inference that the conveyance from Tune to Mrs. Trapp was made for the purpose of delaying or defrauding Tune’s creditor; but that, on the other hand, it was executed to secure a debt, and that the debt had been paid. If the deed was given to secure a debt, why should not the pleader so allege? There is no basis for the inference that Mrs. Trapp advanced any money to Tune, or to Tune’s creditor for his benefit. What then could have been the object of Tune’s conveyance to Mrs. Trapp? It was neither a deed of bargain and sale, nor a deed to secure a debt. The implication is irresistible that Tune desired to vest the title in Mrs. Trapp until he could pay Souder. Even if it be conceded that two conclusions as to the purpose and intent of Tune in giving the deed may be deduced — one that the deed was given to secure a debt, and the other that it was executed to defraud the maker’s creditor, the latter conclusion must prevail. It is an elementary rule of pleading that the allegations are to be construed most strongly against the pleader; and if two constructions can be put on the pleadings, that which is least favorable to the pleader must obtain. The construction, therefore, which should be placed on the facts pleaded is that Mrs. Trapp and the defendant entered into an 'agreement whereby Tune was to convey his land to her in order that he might put it out of the reach of his creditor, so as to gain time to raise the money with which to pay him. It is. admitted that the recital in the deed that the land was sold for $300 is untrue, and from the allegations no inference can be drawn that Mrs. Trapp either furnished or contracted to furnish the money to pay the debt of Souder upon the faith of the conveyance to her. The law brands as fraudulent every conveyance made with intention to delay or defraud creditors, where such intention is known to the party taking. Civil Code, §2695 (2). The courts will not set aside a conveyance to hinder, delay, or defraud creditors, at the instance of the grantor. Watkins v. Nugen, 118 Ga. 375 (45 S. E. 260). When a suitor applies for equitable relief, he must come into court with clean hands with respect to the matters concerning which he asks such relief. The defendant was not entitled to have the deeds canceled as prayed. The defendant contended on the trial, that, although denied the affirmative relief of cancellation, he at least should he permitted to prove the allegations of the rejected amendment as a defense to the action. He offered to testify as follows: “That the warranty deed from W. N. Tune to Mrs. Cora Trapp, dated November 9, 1898, the consideration expressed being $300.00, and the property conveyed being one-half undivided interest in the east half of lot No. ITT in the 14th district of Taylor county, was executed and delivered by him to M. J. Trapp, who was general agent for his wife, Mrs. Cora Trapp, the grantee, and who acted for her exclusively in the transaction, she being at no time present, without consideration. That he, Tune, was then and there indebted to one C. C. Souder, and the claim of said Souder against said Tune was in the hands of R. S. Foy as the attorney of said Souder for collection; that said M. J. Trapp proposed to said Tune that he convey said property to Mrs. Cora Trapp, and that as soon as Tune paid the $16.00, which was the amount of his indebtedness to Souder, the said Mrs. Trapp would reconvey the land to Trine; that there was no other consideration for the execution and delivery of said deed; that a few days afterwards, Tune, having raised the money, $16.00, carried it to Trapp, the plaintiff, Homer Beeland, being present, and Homer Beeland took the money and undertook to carry it to R. S. Foy and pay it to him for Souder, and actually did so, and thus paid the debt. That Trapp at that time stated in the presence of Homer Beeland that his wife, Mrs. Cora Trapp, pursuant to the agreement, would re-convey to said Tune the land described in the deed from Tune to Mrs. Trapp. That shortly afterwards the said Trapp delivered to Tune a note addressed to O. T. Montford, '[directing Montford to cancel this deed] which was likewise offered in evidence, and that Tune carried said note to Montford, and was told by Mont-ford that he could not legally comply with Trapp’s request. That from that time for several years thereafter said Tune continued to occupy said land as he had been doing before, and it was not until some time after the deed was made from Mrs. Cora Trapp to Homer Beeland that Tune ever heard of any claim being made by Mrs. Trapp under the deed which' he made to her, and which M. J. Trapp, her agent, wrote the clerk to cancel, when Tune had paid the money to Souder, which he undertook to pay when the deed was made to Mrs. Trapp.” The court excluded this testimony, and properly so. Its effect was to establish a collusive arrangement between Tune and Mrs. Trapp, whereby Tune was to put the title of his land in Mrs. Trapp to delay Souder in the collection of his debt. As whs said by Bleckley, C. J., in Parrott v. Baker, 82 Ga. 373 (9 S. E. 1071), “both upon principle and authority, the fraudulent maker of such instruments is bound by them according to their terms, irrespective both of any actual payment of a consideration, or any contemporary or subsequent change of possession. . . The title passes as completely, so far as the parties to the. conveyance are concerned, where the possession is retained as where it is delivered. . . It is a mistake — a wide mistake — bo regard an action of ejectment or complaint for land as a call upon the court to enforce the fraudulent deed as a contract. The law, taking the parties at their word and acting upon the deed as pure, has already executed it as a contract and transmuted it into title. The court is called upon to do nothing in behalf of the plaintiff to recover the land, but that which it does for every plaintiff who comes armed with complete title to recover possession of his property.” It is true that the debt which Tune owed to Souder was small, and that he afterwards paid it. But the payment of the debt did not purge the fraud from the conveyance. The law does not grant absolution to a party simply because no loss is occasioned by his fraudulent act. The defendant put the title in Mrs. Trapp, and the court will not relieve him from its consequences by allowing him to show that it was made in pursuance of a collusive and fraudulent design. Besides, the evidence which was repelled was but an effort to prove the facts alleged in the amendment which was disallowed.

3. The plaintiff claimed title to the premises in dispute under two chains of title, each purporting to convey an undivided half interest. One of these chains originated with a deed from the defendant to Mrs. Cora Trapp, and has already been discussed. The other consisted of deeds from Mrs. Hattie E. Cosey and W. E. and E. W. Williamson to E. S. Beeland and the plaintiff, dated December 1, 1903, and a deed from E. S. Beeland to plaintiff, dated January 2, 1905. No paper title was traced to these grantors, and it affirmatively appeared that they had never been in . possession of the premises in dispute. The plaintiff testified that Mrs. Williamson, the mother of these grantors, died leaving three children, the grantors in this deed; that hex husband predeceased her; that the defendant while living on the land sued for, and long before plaintiff got the deed from Mrs. Cosey and W. F. and E. W. Williamson, told him that he, the defendant, and Mrs. Williamson each owned an undivided one-half interest in the eastern half of lot 171, and that Mrs. Williamson at the time was living on a part of the eastern half of lot 171. By directing a verdict the court adjudicated that the deeds introduced in evidence, aided by the parol testimony, established a prima facie title in the plaintiff. In order to reach this result the plaintiff’s right to recover must be rested in part upon an estoppel of the defendant, and not entirely on legal title or possession, as the plaintiff showed neither paper title nor possession in the Williamson children. When a plaintiff in ejectment relies on the defendant’s conduct in aid of his title, he must show that he acted on such conduct in procuring his title. The doctrine of estoppel. as to title to real estate is thus stated in our Civil Code: “§5151. Where the estoppel relates'to the title to real estate, the party claiming to have been influenced by the other’s acts or declarations must not only be ignorant of the true title, but also of any convenient means of acquiring such knowledge. Where both parties have equal knowledge or equal means of obtaining the truth, there is no estoppel. §5152. In order for an equitable estoppel to arise, there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud by which another has been misled to his injury.” While the plaintiff testified that “long before” he bought from Mrs. Williamson’s children the defendant admitted that he and Mrs. Williamson owned the land in common, he does not say in express terms that he acted on this information when he bought, or that he was ignorant of the true title, and had no convenient means of acquiring such knowledge. Even if the jury could have drawn this inference from his testimony, certainly the court could not draw this inference, when it was not necessarily deducible from the testimony. For this reason we think the court erred in directing a verdict.

Judgment reversed.

All the Justices concur.