Lankford v. Holton , 187 Ga. 94 ( 1938 )

Jenkins, Justice.

Every applicant Cor the benefits under the land-registration act (Ga. L. 1917, p. 108; Code, § 60-101 et seq.) must stand on the strength of his own application, and not upon the weakness of his adversary’s title. In proving such title as will entitle him to registration and a decree in his favor, the same rules of law apply as in suits for the recovery of possession of land by ejectment or statutory 'complaint for land:. Thomasson v. Coleman, 176 Ga. 375 (167 S. E. 879); Rock Run Iron Co. v. Miller, 156 Ga. 136, 141 (118 S. E. 670); Smith v. Board of Education, 168 Ga. 755 (2) (149 S. E. 136).

The applicant in her petition claimed the right of registration by virtue both of described deeds and of adverse possession thereunder. However, the evidence before the examiner failed to establish a prescriptive title in her, and she disclaimed any such claim of title, and did not except to the finding that such title had not been shown. Her right to registration, therefore, depends upon title as shown by the deeds under which she claimed.

Both the petitioner and the defendants claimed under a common grantor, who in 1911 executed to a grantee, since deceased, a deed to secure a stated debt of $15,000, due in 1917, which the defendants attacked as void for usury. The title of the common grantor under deeds into him and prescription thereunder was proved and undisputed. Accordingly, the controlling factor in most of the questions raised is the validity of the security deed, under which the applicant as transferee obtained a sheriff’s deed by virtue of its foreclosure, with related questions as to the right of the defendants to attack the security deed and the ad-' missibility of evidence thereon.

Under the law as it existed before the act approved August 18, 1916 (Ga. L. 1916, p. 48; Code, § 57-112), a deed to secure debt, infected with usury, and purporting to convey title to the lender, was void and ineffectual to pass the title. Liles v. Bank of Camden County, 151 Ga. 483 (107 S. E. 490), and cit. The new law, ameliorating this penalty, not being retroactive (Long v. Gresham, 148 Ga. 170 (2), 173, 96 S. E. 211), and the transaction here in question occurring before the new act, the validity of the instrument and the rights of the parties must be determined by the old law and decisions thereunder.

Under the former law, the grantee in a security deed tainted with usury could not, as against the grantor, convey a good title, even to one who took bona fide, for value, before maturity, and without notice of the usury. Wacasie v. Radford, 142 Ga. 113 (2) (82 S. E. 442); Beach v. Lattner, 101 Ga. 357 (2), 366 (28 S. E. 110); Pottle v. Lowe, 99 Ga. 576 (27 S. E. 145, 59 Am. St. R. 246).

Under the old usury law, although the defense of usury was a personal one, which no one could plead except the borrower and his privies, where both parties claimed title from the same source (Scott v. Williams, 100 Ga. 540, 544, 28 S. E. 243, 62 Am. St. R. 340; Zellner v. Mobley, 84 Ga. 746, 750, 11 S. E. 402, 20 Am. St. R. 390; Peoples Bank v. Fidelity Loan & Trust Co., 155 Ga. 619 (2, 3), 117 S. E. 747), and the, plaintiff sought to show title in himself by a deed or other writing, the defendant had the right to attack such instrument and show that it was not a title, but was void for usury or other cause; and this he could do without filing a plea to that effect. Jaques v. Stewart, 81 Ga. 81, 83 (6 S. E. 815).

Under the old law, if the debt secured by the deed was reduced to judgment, without any plea of usury by the debtor or with an adverse verdict and judgment upon such plea, the debtor and his creditors, even holding judgments, in the absence of fraud, want of jurisdiction, or other equities, were estopped from attacking the deed for usury. Miller v. Parker, 133 Ga. 187 (1), 189 (65 S. E. 410); Bush v. Bank of Thomasville, 111 Ga. 664 (3), 667 (36 S. E. 900); Owens v. Gibson, 74 Ga. 465. But where both parties claimed under the grantor in the usurious security deed, the fact that the creditor had reduced his debt to judgment, without any successful defense of usury, did not estop or preclude one who claimed under a conveyance from the .debtor, made before the judgment, and who was not a party to the suit in which the judgment was obtained. Ryan v. American Freehold Land Mortgage Co., 96 Ga. 322, 324 (23 S. E. 411).

(a) Under the laws controlling the transaction of the security deed in question, the defendants, claiming under the grantor, were not estopped or precluded from attacking such deed as usurious by the fact that some of the instruments under which they claimed contained agreements to assume or pay debts or claims “justly due” by the original grantor in the security deed, or liens against the property, since a usurious debt, being founded upon an illegal and immoral consideration (Bailey v. Lumpkin, 1 Kelly, 392, 406; Laramore v. Bank of Americus, 69 Ga. 722; Angier v. Smith, 101 Ga. 844, 28 S. E. 167; Atlanta Savings Bank v. Spencer, 107 Ga. 629, 636, 33 S. E. 878; In re Hotel Equipment Co., 297 Fed. 842), would not be one “justly due;” and since a void usurious security deed would not constitute a valid and therefore actual lien. See National Loan Co. v. Stone (Tex. Civ. App.), 46 S. W. 67; 27 R. C. L. 289; 66 C. J. 325.

(&') Under the preceding rulings, notice being immaterial, the fact that the defendants, claiming under conveyances from the original grantor in the security deed before any judgment against him, had constructive or even actual notice of the alleged invalid deed, would not estop 'or preclude them from attacking it, where the petitioner sought a registration of title thereon.

(c) Nor in such a proceeding would the defendants in possession be estopped or precluded bjr mere lapse of time from attacking the validity of the deed when relied upon by the petitioner for registration.

“Grounds of a motion for new trial based upon the admission of evidence will not be considered by this court unless the grounds show what are- the objections to the evidence, and that these objections were made when the evidence was offered. Nor will the reason or reasons why certain evidence should not have been admitted be considered here, unless such reasons appear to have been urged before the trial judge and at the proper time.” Langston v. State, 153 Ga. 127 (111 S. E. 561); Grace v. McKinney, 112 Ga. 425 (2) (37 S. E. 737); Lamkin v. Clary, 103 Ga. 631 (5), 639 (30 S. E. 596); Harris v. State, 156 Ga. 582 (119 S. E. 519).

(a) “The provision of the [Code, § 38-1603, par. 1], to the effect that the opposite party in a suit instituted or defended by an indorsee, assignee, or transferee of a deceased person shall not be admitted to testify in his own favor against the deceased person as to transactions or commuhications with such person, refers only to the immediate indorsee, assignee, or transferee of the deceased person.” Purvis v. Raste, 144 Ga. 16 (3) (85 S. E. 1012); Castleberry v. Parrish, 135 Ga. 527 (5) (69 S. E. 817). It has therefore been held that in a suit to recover land, brought by one claiming as heir at law of a deceased person who held a conveyance from a former owner, where the defendant claims by virtue of a chain of conveyances beginning with such former owner, the former owner is not incompetent to testify as to transactions between her and the deceased person under whom the plaintiff claims as heir. Goddard v. Boyd, 144 Ga. 18 (85 S. E. 1013).

(b) By the express language of the Code, § 38-1603, par. 5, the incompetency of an '“agent or attorney at law of the surviving . . party” to testify as to transactions with a deceased person exists only where the witness was such agent or attorney “at the time of the transaction testified about.” In order for the inhibition of § 38-1603, par. 4, to exclude testimony as to such transactions by a '“person interested in the result of the suit,” the interest must not be mere personal bias or based on near relationship, even such as husband and wife, but must be founded upon or reducible to pecuniary gain. Blount v. Beall, 95 Ga. 182 (2), 188 (22 S. E. 52); Jackson v. Gallagher, 128 Ga. 321, 324 (57 S. E. 750), and cit.; Lawson v. Prosser, 146 Ga. 421, 423 (91 S. E. 469); Belcher v. Craine, 135 Ga. 73 (4) (68 S. E. 839); Dean v. Dean, 13 Ga. App. 798 (80 S. E. 25); Morris v. Shaw, 44 Ga. App. 222 (5) (160 S. E. 820). Nothing was held to 'the contrary in Dorminy v. Russell, 182 Ga. 635 (186 S. E. 679), where not only was it admitted in judicio that the husband, who sought to testify for his wife, was her general agent, but it appeared that he himself had a pecuniary interest in the result of the suit.

(c) Under the rulings made in this division of the opinion, the testimony of the original grantor in the security deed, under whom all the parties in this case claimed, was properly admitted, and should have been considered, as it was, by the examiner, who merely held it to be '“'insufficient evidence to void the security deed.” Not only were there no objections'to the admission of this evidence on grounds urged in this court, the objections before the examiner being that the witness could not “go behind” the judgment and execution rendered against him on the security deed, and that the evidence was “too vague and indefinite” as to amounts and circumstances of payment to “be of any probative value to sustain the allegation of usury, even if [the present defendants] were either necessary or proper parties to the suit on the note and. security deed,” and there being no exception on any ground to the admission of the evidence, but it further appeared that the petitioner was not the “immediate” assignee or transferee of the deceased grantee in the security deed; so as to entitle her to claim the benefit of the alleged disqualification, and it in no wise appeared either that the witness was the “ agent or attorney at law” of any of the defendants “at the time of the transaction testified about,” or that he had a pecuniary interest in the outcome of the suit which precluded him from testifying.

Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which is given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a jury or other trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth. In a ease where the direct evidence is not all one way, or where there are proved facts and' circumstances which could be taken as inconsistent with the direct positive testimony, the jury may always consider the relationship and the feeling of the witnesses toward the parties, as well as all the facts and circumstances of the case, including the witnesses’ manner of testifying, their intelligence and number. Georgia Railroad & Banking Co. v. Wall, 80 Ga. 202, 204 (7 S. E. 639); Central of Ga. Ry. Co. v. Wood, 105 Ga. 499 (30 S. E. 933); S. C. & Ga. R. Co. v. Powell, 108 Ga. 437 (33 S. E. 994); Ga. So. & Fla. Ry. Co. v. Sanders, 111 Ga. 128, 129 (36 S. E. 458); Western & Atlantic R. Co. v. Beason, 112 Ga. 553, 556 (37 S. E. 863); Patton v. State, 117 Ga. 230 (5) (43 S. E. 533); Frazier v. Ga. R. &c. Co., 108 Ga. 807 (33 S. E. 996); Ga. So. & Fla. Ry. Co. v. Thompson, 111 Ga. 731 (36 S. E. 945); Taggart v. Savannah Gas Co., 179 Ga. 181 (175 S. E. 491); Jones v. State, 48 Ga. 163, 164; Moore v. Dutson, 79 Ga. 456 (4 S. E. 169); Central Railroad &c. Co. v. Maltsby, 90 Ga. 630 (16 S. E. 953); Armstrong v. Ballew, 118 Ga. 168 (2) (44 S. E. 996); Gibbs v. State, 8 Ga. App. 107, 108 (68 S. E. 742); Neill v. Hill, 32 Ga. App. 381 (2-a) (123 S. E. 30); Jones v. Teasley, 25 Ga. App. 784, 788 (105 S. E. 46); Penn. R. Co. v. Chamberlain, 288 U. S. 333 (3), 341 (53 Sup. Ct. 391, 77 L. ed. 819). Were this not the rule, in no case where relationship, feeling, or some personal interest of a witness might exist, would it ever be proper for the trial court to grant a nonsuit or direct a verdict, or for this court to grant a new trial on the ground that a contrary verdict was demanded. This rule is not in conflict with the ruling in cases such as Whiddon v. Hall, 155 Ga. 570 (6), 578 (118 S. E. 347), in which it was held: “It can not be said, as a matter of law, that the jury is bound to accept evidence as true, although not contradicted by direct evidence. The credit of this witness was for the jury,” since the ruling went only so far as to hold that impeaching direct evidence is not necessary; and in this connection, in this and similar cases, it appeared that there were proved circumstances contradictory in character to the direct evidence, which the jury could weigh in determining the weight to be given it. The Whiddon ease is further distinguishable by the additional holding therein, “Besides, there ivas some evidence” on the point in question.

On the essential issue as to whether the security deed was usurious, the grantor testified: “At the time this $15,000 was obtained from Mr. B. H. Tanner [the grantee in the deed], as a part and parcel of the transaction he required me to pay for the $15,000, not only the $15,000 mentioned in the loan deed, and 8 per cent.interest thereon, but an additional $1000 and interest thereon at 8 per cent.; in other words, required me to pay $16,000 and interest on $16,000 at 8 per cent, for $15,000 of money actually advanced. This was at the time and in connection with the $15,000 borrowed on the loan deed.” On cross-examination, he testified: “I didn’t pay the full amount of $1000. Later on there was an amount,.less possibly $500, accepted in settlement of it. At that time it was settled with a great many other obligations.” This testimony was uncontradicted.

(a) As was brought out on cross-examination, an amount in excess of lawful interest was not only charged but actually paid. Furthermore, since usury consists not only in “the reserving and taking” but in the “contracting to reserve and take” more than the'legal rate (Code, § 57-102; and see also Code of 1910, § 3427), the fact that the agreed excess was compromised and settled for a-less amount would not free the transaction from usury. Martin v. Johnson, 84 Ga. 481, 486 (10 S. E. 1092, 8 L. R. A. 170).

(&) Under the preceding holdings, the testimony of the grantor being admissible, not being contradicted by either sworn testimony or facts and circumstances, and not being subject to rejection by the mere fact that the witness was the husband of one of the defendants .and .the brother-in-law and uncle of the other defendants, such testimony demanded findings that the transaction was usurious; that the security deed was void, and the sheriff’s deed based thereon was ineffective to pass title as against the defendants; and that such instruments constituted no basis for registration of title in the petitioner, or in the intervenors who claimed under her. It was therefore error to overrule the defendants’ exceptions of law and fact on these grounds to the report of the examiner, and to enter decrees in favor of such registration.

The land-registration act, Code, § 60-207, requires the applicant to set forth in the petition “when, how, and from yhom [the land] was acquired, a description of the title by which he claims the land, and an abstract of title.” With reference to the registration of title to three of the tracts under several deeds thereto from a city marshal and the city to the petitioner, based on executions and assessments by the city authorities for paving, curbing, and improving the street adjacent to part of the property, not only did the petition and abstract fail to include such deeds or claim registration thereunder, but several were executed during the pendency of. the suit. For these reasons, the findings of the examiner and the decrees of the court could not properly be based on such instruments.

(a) Where a city marshal has levied an execution issued by the city authorities, and has executed a deed to the purchaser at the sale, “in the absence of statutory aid, the recitals in [such a] tax deed that the preliminaries of a valid sale . . were observed are not evidence of the facts recited.” Johnson v. Phillips, 89 Ga. 286 (2), 288 (15 S. E. 368). This principle, now codified as § 92-4407, would apply equally to recitals in a marshal’s deed, made under an assessment, execution, and sale for paving, curbing, or other city improvements. Accordingly, even if the petitioner could claim registration under unpleaded deeds from a city marshal and the city, and under deeds executed during the pendency of the case, she was in no event entitled to a finding and decree based thereon, where the only evidence as to the validity of the executions and sales, and as to a proper compliance with the preliminaries necessary to render the deeds valid, consisted of recitals in such deeds and papers.

(6) The land-registration act (Code, § 60-202), expressly provides that “for the purpose of this title no Lax deed shall be treated as a muniment of title, or admitted in evidence, or considered by the examiner or the court as a conveyance of title, color of title, or claim of title, unless the same shall have been executed, delivered, and recorded more than seven years before the filing of the petition for registration of title of the land described in such dteed.” In Georgia Railroad &c. Co. v. Decatur, 137 Ga. 537, 540 (73 S. E. 830, 40 L. R. A. (N. S.) 935), it was said: “Though'assessments for local improvements are not taxes within the meaning of the requirement of the constitution that taxes must be ad valorem and uniform, nevertheless assessments for local improvements, such as street paving . . are an exercise of the taxing power.” See 44 C. J. 481. Again, in City of Brunswick v. Gordon Realty Co., 163 Ga. 636, 641 (136 S. E. 898), this court said: “By the great weight of authority a local assessment, levied in return for the benefits conferred upon the property assessed by the improvement for which the assessment is levied, is a kind of tax.” “The city might, if it sees proper, raise money by direct taxation for the specific purpose of making street improvements; and the fact that by the method of assessment' . . it imposes the burden upon the property owner whose property would be benefited by the improvement does not divest the proceeding of the city, in issuing and levying the execution, of its character as an exercise of the taxing power.” See, as to such assessments and procedure, Code,' §§ 92-4201, 92-4401, 92-4402. Although § 67-1701 (1), establishing liens, refers to '“liens in favor of . . municipal corporations for taxes,” and § 92-5708, fixing priorities, refers “to liens for taxes . . due . . any municipal corporation,” and “taxes due to municipal corporations of the State,” without any express reference to liens for city improvements of property, it was held in the Gordon Reatty Co. case, supra, that '“the lien upon the property in question . . [has] the rank of a tax lien.” The procedure in sales under executions for city improvements and the time for redemption therefrom also have been held to be controlled by the statutory rules applicable to ordinary city tax fi. fas. Hopkins v. Chatham Bank & Trust Co., 174 Ga. 136 (162 S. E. 521); Lewis v. Moultrie Banking Co., 36 Ga. App. 347, 348 (136 S. E. 554). Since the power to assess and to issue and levy execution for such improvements, the rank of the lien, the procedure and' period of redemption in such a sale, are thus governed by statutes relating to city taxation, a deed issued under such an assessment must be construed as a “tax deed” within the intent and meaning of the land-registration act. Code, § 60-202. And since such deeds, made in this case to the petitioner, were not “executed, delivered, and recorded more than seven years before the filing of the petition,” as required by that section, the petitioner, for this additional reason, was not entitled to registration based thereon, irrespective of other reasons which have been stated.

“In this State a bond for title is color of title, and the holder thereof may, through seven years adverse possession, acquire title against all persons, except his obligor, and the heirs, executors, and administrators of the latter.” Baxter v. Phillips, 150 Ga. 498 (104 S. E. 196). The petitioner failing to show and disclaiming at the hearing before the examiner any prescriptive title, and the security deed on which her claim of title through the grantor therein essentially rested being void und'er the evidence, she was not entitled to prevail thereon against the defendant wife of such grantor, who claimed more than seven years adverse possession under color of title to three of the tracts sought to be registered, and an undivided half interest in the tract numbered 4, the remaining half interest being claimed' by the defendant heirs of the deceased brother of the original grantor. The evidence showed that the security deed was executed in 1911 and matured in 1917; that the grantor therein executed a deed to a half interest in tract 4 to his brother in 1913-, and a deed to the remaining properties in question to another person in 1915; that this purchaser executed a bond for title to the defendant wife in 1920; that the purchaser from the original grantor went into possession under his deed, and the defendant wife into possession under her bond for title, and! possession under these instruments extended for more than seven years; that the petitioner obtained a judgment on her security deed and debt and a sheriff’s deed thereunder in 1923; and that the petition was filed in 1928. The defend'ant wife, thus establishing under the evidence a good prescriptive title to all of the property except the half interest in tract 4, showed such a title as she was entitled to register by virtue of the Code, §§ 60-202, 60-206, under her claim set up by amendment in the nature of a “ cross-action praying for the title to be found” in her. As stated, the title existing in the common grantor at the time of his execution of the security deed to the petitioner’s predecessor in title was proved -without dispute. The heirs of the deceased brother, by virtue of adverse possession under the deed executed to him in 1913, likewise were entitled to registration of title to the one-half interest in tract 4. Since the intervenors acquired their rights under instruments subsequently executed to them by the petitioner, in 1928, 1932, 1933, and 1934, such rights, so far as shown by the evidence, were inferior to those of the defendants.

(а) While under the old usury law it was the rule that “before a borrower who has executed . . a [security] deed [void for usury could] have affirmative equitable relief” therefrom, such as cancellation or injunction, he '“must pay or tender to [the] grantee the principal and lawful interest due to him” (Liles v. Bank of Camden County, 151 Ga. 483 (supra), and cit.), assuming without deciding that such a rule would be applicable to subsequent purchasers from the grantor-borrower, this would not prevent the defendants in this case from having their titles, acquired by prescription under their own color of title, registered in their cross-actions, since as to the security deed their defenses were only negative, and their affirmative prayers related to their claims of title, independently of such deed.

(б) Under the evidence, the security deed being void for usury, and having been in default since January 1, 1917, without exercise by the grantee of the right of entry and possession arising after such default, and the defendants’ claim of adverse possession under their own color of title being in no wise permissive under the grantee in the security deed (see Sweat v. Arline, 186 Ga. 460, 197 S. E. 893, dealing with the law before the act of 1937 (Ga. L. 1937, p. 755), and citing and distinguishing Tony v. Ledford, 184 Ga. 856, 858, 193 S. E. 761; Chandler v. Douglas, 178 Ga. 11, 172 S. E. 54, and other cases, as to the right of subsequent purchasers from a grantor in a valid security deed to acquire prescriptive title against the grantee therein, before default and consequent right of entry and possession by the grantee), it was error for the examiner to find, and for the court to approve the finding, that the conveyances to the defendants, “because of actual and constructive notice . . were all made and are subject to the title previously alienated” by the grantor to the grantee in the security deed, “and the title of those acquiring by virtue of same.”

(c) The land-registration act provides that suit “shall be begun by a petition to the court by the person or persons or corporation claiming, singly or collectively, to own . . an estate in fee-simple in any land, whether subject to . . lesser estate, or not” (Code, § 60-203); and that any person may file “objections to the granting of the relief prayed for in the petition . . by filing in court an answer . . and the grounds of his objection; or he may file a cross-action praying that the title to the land, or some interest therein, be decreed to be in him, and registered accordingly.” Code, § 60-206. Under these express provisions, all of the parties at interest being before the court, the fact that, as to the tract numbered 4, one defendant sought registration of an undivided half interest, and the other defendants registration of the other half interest, would not defeat the right of the defendants to registration of the titles to these respective interests.

Under the preceding holdings, the oral and documentary evidence demanded findings that the original security deed was usurious and void; that the petitioner.and the intervenors claiming under her were not entitled to register their claims of title; and that the defendants were entitled to registration of their respective titles, as stated. Accordingly, while the court properly overruled the general demurrers of the petitioner to the answers of the defendants and amendments thereto, it was error to overrule the exceptions of the defendants to the report of the examiner, and error to decree in favor of the petitioner and the intervenors.

Judgment reversed On the mam hill of exceptions; and affirmed on the cross-hill.

All the Justices concur.