Burtchael v. Byrd

Lumpkin, J. (After stating the foregoing facts.) The plaintiff brought an action of complaint to recover land, and a verdict was rendered in her favor. The defendant, having failed to obtain a new trial, excepted. 1. After the father of these two sisters had executed a deed to one of them, the plaintiff in the present action, he filed an equitable proceeding to have it set aside because of alleged incapacity to transact business when he made it. In addition to denying the substantial allegations of such petition, the grantee set up in her answer, that, shortly before or soon after bringing the suit, the grantor had executed other deeds conveying this and other property to a sister of the first grantee, or to her and her husband (the sister being the present defendant). On the trial of that case the deed made to the sister of the defendant was brought in under subpoena duces tecum. On the trial of the equitable action, after the plaintiff had closed his evidence, the second deed made by him to his other daughter, the defendant in the present case, was exhibited to the court; and the contention was made that the plaintiff in the action, having conveyed away the title before bringing suit, could not maintain the proceeding to set aside the first deed made by him. The court intimated that he would sustain the position, and thereupon the plaintiff in the case dismissed the suit. The defendant in the instant case contends that the present plaintiff is es-topped from now attacking the deed which was so used, and that she elected to defend that case by treating the conveyance as valid, and must abide such election. There are several reasons why these positions are unsound. 'The present defendant was not a party to the former case, but the plaintiff therein was a person who had already executed the deed to her. He did not await a ruling of the court, but on an intimation dismissed his case. By his first deed and the instrument executed to him by the grantee therein, he conveyed the fee to her, and she agreed that he should have the sole [34] and undisturbed possession for life, without payment of rent. This amounted to reserving a life-estate, or at least a use for life. If thereafter he made a conveyance of more than he had, it might be good as against him and yet inferior to his prior deed. There was no essential inconsistency in asserting that the plaintiff in that case had no right or title left in him authorizing him to bring the suit, and yet that his second conveyance was inferior to the first. If an owner of land makes two deeds to it, either may be good as to him, denuding him of any title, but this does not settle the question as to which is superior to the other. Nor could this properly have been determined in an action to which the grantee in the second deed was not a party, so as to be an adjudication as between the holders of the two deeds. If the agreement between the grantor and the first grantee be treated as creating or leaving in him a life-estate, his second deed might have conveyed that only, although it may have purported to be a conveyance of the fee. Civil Code (1910), § 3671. The common grantor, who was the plaintiff in the proceeding filed to cancel his first deed, did not offer to restore the status; indeed the agreement leaving a life use in him was recorded the day before the trial. The defendant in that case, who is the plaintiff in the present action, is not prevented from asserting the superiority of the conveyance to her over the later one to her sister, either under the doctrine of estoppel or that of the election of remedies. The case differs from that of David v. Tucker, 140 Ga. 240 (78 S. E. 909), and similar cases. There á widow filed an equitable proceeding to cancel a deed which had been executed by her husband, and obtained a decree, thus restoring the title to the status in which it was before the deed was made. Subsequently she' sought to hold the property and repudiate the title which was asserted by the administrator of her husband. 2. The plaintiff in error further contends that the evidence demanded a finding that she had a prescriptive title. While the evidence was conflicting, there was some of it on behalf of the defendant in error which tended to show that the grantor in the original deed remained in possession until his death in March, 1913, controlling the property, sometimes renting out a part of it, and that the defendant lived with him as his daughter during a part of the time, that he returned the land for taxation and paid the taxes on it until and including 1909, and that it was returned [35] by the defendant only in 1910, 1912, and 1913. She also knew of the prior deed to her sister, though she testified that she did not think it was good, and thought she herself was obtaining a good title. This, with other evidence, was sufficient to authorize a finding that there was no adverse possession by the plaintiff in error of the necessary character and for a sufficient length of time to ripen into a prescriptive title. The rulings above made substantially control the ease. The verdict was supported by the evidence, and there was no error in overruling the motion for a new trial. Judgment affirmed. All the Justices concur, except Fish, G. J., absent.