Clowers v. Clemons , 185 Ga. 567 ( 1938 )

Russell, Chief Justice.

1. It appearing from the record that the defendant in fi. fa., George Clowers, died on May 17, 1935, and that at the time of his death he was in possesion of the property in dispute in this case, and that thereafter the plaintiff filed an application for a year’s support, whereupon appraisers were appointed who set apart the land in dispute as a year’s support, and citation was issued and published as provided by law, and, no objection being filed, the report of the appraisers was made the judgment of the court of ordinary on April 6, 1936; and it further appearing from the record that the sale under a common-law fi. fa. in favor of the defendant occurred after the death of the husband of the plaintiff, the sheriff’s sale was ineffectual to pass the title as against the right of the widow to a year’s support.

2. It appears from the record that a deed was executed by George Clowers to his daughter, and was recorded on the same day it was executed, but that this deed was never delivered to her or to any one authorized by her to receive it, and that the grantor, her father, continued in possession of the land until his death. “The presumption of delivery arising from the due attestation and registration of the deed may be rebutted by evidence tending to show that the maker of the deed retained the actual possession of it and continued to exercise actual ownership over the land therein described.” Morris v. Morris, 171 Ga. 642 (2) (156 S. E. 256). In the instant case it was admitted that George Clowers, the defendant in fi. fa., remained in possession of the land in dispute up to the time of his death; and his daughter, the grantee in the deed, swore that the deed was never delivered to her or to any one authorized to receive it for her.

3. “The doctrine that the grantor in a deed made for the purpose of hindering, delaying, or defrauding his creditors, or one claiming in his right; can not be heard to question the validity of such deed, does not apply where the deed was not in fact delivered.” Lowry v. Lowry, 150 Ga. 324 (3) (103 S. E. 813); Morris v. Morris, supra.

4. The doctrine of estoppel has no application to the facts of this ease.

5. The court erred in overruling the motion for new trial, complaining of the direction of the verdict for the defendant.

Judgment reversed.

All the Justices concur, except Bell, J., who dissents.