Lawson v. Prosser , 146 Ga. 421 ( 1917 )

Gilbert, J.

(After stating the foregoing facts.)

1. Mrs. Mattie Prosser, the nominal plaintiff, suing in behalf of her minor daughter, was offered as a witness by the plaintiff to prove certain facts in regard to the making of a deed to the land in question by Mrs. E. E. Prosser. The defendant objected to her testimony, on the ground that she was the plaintiff in the case, and because she was interested in the result of the suit, Mrs. E. E. Prosser, the grantor from whom both the plaintiff and the defendant claimed, being dead; and upon the further ground that the offer of this testimony was an attempt to engraft upon an unconditional deed a trust in favor of a third party. The testimony was not inadmissible for any of the reasons assigned. The suit was neither instituted nor defended by the personal representative of a deceased person; nor was the evidence rendered inadmissible by any other provision of the Civil Code (1910), § 5858. Blanchard v. Johnson, 142 Ga. 447 (83 S. E. 104). By express terms section 5858 of the Civil Code is to be strictly construed, and other than therein provided there are no exceptions. Civil Code (1910), § 5859. See, in this connection, Blount v. Beall, 95 Ga. 182 (2), 188 (22 S. E. 52); Jackson v. Gallagher, 128 Ga. 321 (57 S. E. 750); Hall v. Hilley, 139 Ga. 13 (76 S. E. 566); Kitchens v. Pool, 146 Ga. 229 (91 S. E. 81). Eor the same reason the court did not err in admitting similar testimony of Mrs. Estelle Posey, a witness for the plaintiff. The testimony of this witness was also objected to by the defendant, on the ground that it was an attempt to engraft a parol trust upon an unconditional, deed. The testimony of neither of these witnesses was inadmissible for the last-stated reason. The witnesses were offered,for the' purpose of proving that J. M. Prosser executed a deed to his interest in the land to his mother for a particular purpose, namely, that the mother should execute thereafter a deed to the same property to his daughter, Leone Prosser, and that this deed was actually executed and delivered, but not recorded. If this was the truth of the case, when J. M. Prosser conveyed title to his mother merely to enable her to convey it to Leone Prosser, the property immediately became impressed with an. implied trust in favor of Leone Prosser. McKinney v. Burns, 31 Ga. 295; Williams v. Smith, 128 Ga. 306, 310 (57 S. E. 801); Civil Code (1910), § 3741.

2. “A voluntary deed, though duly recorded, and taken without notice of a prior voluntary deed executed by the same grantor and not recorded, does not give to the second grantee a priority over the first.” The preference given by statute is confined to deeds made upon a valuable consideration. Toole v. Toole, 107 Ga. 472 (33 S. E. 686); Byrd v. Aspinwall, 108 Ga. 1 (33 S. E. 688). The court fairly submitted to the jury the disputed issue of fact, as to whether the deed to Lawson was voluntary or for a valuable consideration. The jury found it to be voluntary. This finding can not be' said to be unsupported, since the defendant himself swore, speaking of the grantor: “She told me she wanted to give me the property. In a way she gave it to me. There was a money consideration, I couldn’t say how much; but it was her purpose and intention to reimburse me with this land. I paid her what the deed says at the time of her making it. I paid her ten dollars at that time.”

3. It was not error in this case to instruct the jury as follows: “I charge you that although you might reach the conclusion that Mrs. E. E. Prosser made to Mattie. Leone Prosser the deed in 1902, if the defendant, in 1907, purchased the land from his mother, for a valuable consideration (this is that he paid money for it, although it might not have been the full value of the land), and if he had no actual notice of the previous deed claimed by the plaintiff to have been made by Mrs. E. E. Prosser in the year 1902, if he had no actual notice of that deed, and was what the law calls an innocent purchaser, he should get a good title to the land.” There is no merit in the criticism of this charge that the court instructed the jury that “the valuable consideration must be paid in money,” movant contending- that the consideration “may be anything of value, and other things than money.” The only reference to consideration in the defendant’s allegations was to “a valuable consideration in cash.”

4. The court did not err in charging the jury as follows: “If the plaintiff is 'entitled to recover anything at all, she is entitled to recover the forty-nine acres sued for in this action.” The plaintiff in error contends that this charge was error, because if the plaintiff was entitled to anything under her petition, “she was entitled to a one-half undivided interest in the whole tract of land,” or “a one-half undivided interest in that portion of the land held by the defendant.” The reply to this is that the petition of the plaintiff ratified the division of the land already made between the defendant and Mrs. Posey, and sued for that portion awarded to the defendant. This she had a right to do.

Judgment affirmed.

All the Justices concur.