Preston v. Ham

Hines, J. (After stating the foregoing facts.) 1. Was a verdict demanded in favor of the defendant? That is her contention. This contention is based upon three grounds. One is that the plaintiff is estopped from asserting title to the premises in dispute, by his conduct and admissions. The second is that the plaintiff and the defendant were both claiming the estate of the deceased wife, the former as her sole heir at law, and the latter as her donee,, and that they entered into a compromise agreement by which the plaintiff was to have certain portions-of this property, and the' defendant, who was the sister of the wife, was to have the premises in dispute; in consequence of which agreement the defendant delivered to the plaintiff the property — 233 — which the latter wals to have, and the plaintiff instructed the defendant to have the deeds to the premises in dispute recorded. The third is that the deeds were actually delivered. Was the plaintiff estopped by his admissions and conduct? . The plaintiff, as ordinary, was one of the attesting witnesses to one of the deeds from his wife to the defendant. Such attestation by him, he being an officer authorized by law to witness the same, is presumptive proof of the deed’s delivery. Ross v. Campbell, 73 Ga. 309; Mays v. Fletcher, 137 Ga. 27 (72 S. E. 408). Such a presumption, however, is a rebuttable one. It is not more conclusive upon the attesting witness than it would be upon the grantor. Whether this presumption was rebutted was a question for the jury, under the facts of this case. The mere fact that the plaintiff officially attested its execution was not a binding admission on his part that it had been delivered, any more than the execution of the deed by the grantor, containing a recital of its delivery, would conclusively bind the maker or her heirs. The instant case is different from those wherein parties take and receive benefits under deeds, and thus estop themselves from attacking them as void for lack of delivery or other defect, and from asserting title to the premises conveyed by such instruments against the grantees therein. Barsky v. Posey, 11 Del. Ch. 153 (98 Atl. 298); Fuller v. Johnson, 139 Minn. 110 (165 N. W. 874); Johnson v. Hughart, 85 Ky. 657 (4 S. W. 348); David v. Williamsburg, 83 N. Y. 265, 38 Am. R. 418); Keirsted v. Avery, 4 Paige (N. Y.) 9. In the cases cited parties were held equitably estopped from attacking deeds under which they had received benefits, and from asserting title adverse to the grantees; and they were properly held so estopped. In the case at bar the husband did not receive any benefit under the deeds executed by his wife. Por this reason he would not be estopped by his mere delivery of these deeds after his wife’s 'death, or by his assertion that they were valid instruments, or by his consent for the grantee to have them recorded. So we are of the opinion that the husband would not be estopped from asserting title to these lands as the heir at law of his wife, by conduct on his part which might amount to an admission that the claim of title to the premises in dispute by the grantee in the deeds from his wife was valid and all right. The grantee did not act to her injury on the faith of such admission, — 234 — and the plaintiff did not receive any , benefit' under these deeds.' Hence he would not be estopped by such conduct and admission alone. But it is insisted that a verdict in behalf of the defendant is demanded, by reason of the compromise agreement made between plaintiff and herself, touching the estate of plaintiff’s wife. The facts touching this compromise agreement are fully set out in the statement of facts, and' need not be repeated. Compromises of doubtful rights are upheld by public policy and by the decisions of this court. This is especially true when they -partake of the nature of family arrangements. It is well settled that in equity the termination of family controversies affords a consideration which is sufficient to support a contract made for such purposes. Watkins v. Watkins, 24 Ga. 402; Fulton v. Smith, 27 Ga. 413; Smith v. Smith, 36 Ga. 184 (91 Am. D. 761); Belt v. Lazenby, 126 Ga. 767 (56 S. E. 81). In order to render valid the compromise agreement, it is not essential that the matter should be really in doubt; but it is sufficient if the parties consider it so far doubtful as to make it the subject of compromise. City Electric R. Co. v. Floyd County, 115 Ga. 655 (42 S. E. 45); Belt v. Lazenby, supra. But it is necessary, in order to furnish a consideration for such compromise agreement, that the contention be made in good faith and be honestly believed in. Dickerson v. Dickerson, 19 Ga. App. 269 (91 S. E. 346). Evidence in the record discloses that the defendant claimed certain real estate and personal property of the deceased wife of plaintiff, the real estate under deeds of conveyance and the personalty under verbal gifts; and that the plaintiff, as sole heir at law of his wife, claimed a part or all of this property. The plaintiff and defendant settled this controversy by an agreement by which the plaintiff was to have certain certificates of deposit claimed by the defendant, and the defendant was to have the premises' in dispute. This agreement was performed by the defendant, she turning over to plaintiff these certificates of deposit and the insurance policy, and the plaintiff agreeing for her to keep the premises in dispute, and directing her to have the deeds thereto recorded. The plaintiff did not deny the above agreement -and its performance, as claimed by the defendant. The evidence as to said agreement and its performance by the defendant is uncontradicted. There is no evidence from which the inference — 235 — can be drawn that the defendant did not in good faith and honestly believe that she was entitled to the personal property to which she relinquished her claim, and which she turned over to plaintiff in settlement of the controversy between them. The facts and circumstances appearing from the evidence adduced on the trial show that the claim and contention of the defendant were honest and in good faith. The rights of the respective parties were in doubt, or were thought by them to be doubtful. They settled their controversy by a compromise agreement. If the defendant in good faith and honestly believed in her contention that she was entitled to all of this property, including the premises in dispute and the personal property turned over to plaintiff by her, and if in settlement of this controversy she and plaintiff entered into a compromise agreement as above mentioned, then the making and performance of such agreement would be binding upon the plaintiff, and he would be equitably estopped thereby from asserting title to the premises in dispute against the defendant. We see no good reason why both of these parties should not stand by this agreement. The plaintiff is now equitably estopped from repudiating this agreement. It follows as a consequence that a verdict in favor of the defendant on this issue was demanded under the evidence; and the court erred in not granting a new trial. 2. The court charged the jury as follows: “that all instructions given at the hospital or at any other time with reference to the delivery of the deeds by Mrs. Ilam should be construed by the jury to mean a delivery during her life, and not a delivery after her death.” The defendant, in her motion for a new trial, excepts to this charge and assigns error' thereon, on the grounds: (1) that it is not a correct statement of law applicable to the case; (2) that it improperly qualified the preceding portion of the charge; and (3) that it withdrew from the consideration of the jury the contention of the defendant that Mrs. Ham had given unconditional, positive, and absolute ■ directions for the delivery of the deeds in question to the defendant upon her death. We think the court erred in this instruction to the jury. The jury were authorized to find that the directions touching the delivery of these instruments to the grantee, given by the grantor -at the hospital during her last illness, .amounted to a total and absolute renunciation by the grantor of dominion over these deeds, and a — 236 — valid delivery of them to the grantee. A deed may be delivered by acts without words, by words without acts, or by both. Wellborn v. Weaver, 17 Ga. 267 (7) (63 Am. D. 235); O’Neal v. Brown, 67 Ga. 707, 712. “ The delivery,” says Touchstone, “ is either actual, i. e., by doing something and saying nothing; or else verbal, i. e., by saying something and doing nothing, or it may be both; and either of these may make a good delivery and a perfect deed.” 1 Shep. Touch. 57. Even though the deed reaches the grantee after the death of the grantor, having been previously left with a third person for the use of the grantee, it is a good delivery. O’Neal v. Brown, supra; Puett v. Strickland, 144 Ga. 193 (86 S. E. 547). This instruction was calculated to mislead and confuse the jury, and to impress upon their minds the idea that these deeds had to reach the grantee in the lifetime of the grantor. This error is not cured by the fact that the court in another portion of Iris charge gave to the jury correct instructions on this point. The jury should not be left to decide between conflicts in the charge. Central of Ga. Ry. Co. v. Johnston, 106 Ga. 130 (32 S. E. 78); W. & A. R. Co. v. Clark, 117 Ga. 548 (44 S. E. 1); Morrison v. Dickey, 119 Ga. 698 (2) (46 S. E. 863); Savannah Electric Co. v. McClelland, 128 Ga. 87 (2) (57 S. E. 91). The giving of this instruction requires the grant of a new trial. 3. Was a verdict in favor of the defendant demanded because the proof on the last,trial showed that the deeds in question had been actually delivered? When this case was here before, this court held that the evidence about the arrangement by which these deeds were placed with the cashier of the Bank of Elovilla, to be kept for the grantor, and, if anything should happen to her, for delivery to the grantee, authorized the jury to find that this transaction was testamentary in character, and did not constitute a valid conveyance of these premises to the defendant. This will become manifest by an examination of the case of Baxter v. Chapman, 147 Ga. 438 (94 S. E. 544), on which the decision of the court on that point was put. This is now the law of the case. This being so, the jury could still find from the same evidence that the attempted disposition of this property by this arrangement was testamentary in character, and that the deeds in question had not been delivered, and did not amount to a valid conveyance thereof. So it becomes necessary to inquire whether the evidence intro — 237 — duced ou the last trial has altered the situation, and made a case which demanded a finding that these instruments had been delivered so as to make a valid conveyance of these premises to the defendant. While the deposit of these deeds with the cashier of the Bank of Flovilla was held by this court to be testamentary in character from lack of delivery during the lifetime of the grantor, if thereafter the delivery of these instruments was completed, such infirmity would be removed, and their testamentary character would be swallowed up in their perfected character as conveyances. Where a delivery of a deed to a third person is insufficient in that the grantor has not effectually parted with the control over the instrument, it may be rendered effective by subsequent acts and declarations of the grantor showing his intent to part with such control, although the depository is not informed of the grantor’s changed intention. Moore v. Trott, 162 Cal. 268 (122 Pac. 462). During her last illness, and while she was in the hospital in Atlanta, the grantor gave to her cousin, Mrs. Lucy Sandburg, these directions about the delivery of these deeds: “Lucy, I know the end is near. I want you to do something for me. You know .1 have deeded Bess my house and store in Flovilla. You understand why. These papers are with Mr. Gibson in the Bank of Flovilla. I want you to get them at once and deliver them to Bess.” These directions amounted to an unequivocal, unconditional, and complete renunciation by the grantor of dominion over these instruments, and to a valid verbal delivery, i. e., one “ by words and doing nothing,” whereby the title to these premises passed to the grantee, although these deeds did not reach the hands of the gran: tee until after the death of the grantor. If nothing more appeared, we. could hold, as a matter of law; that this was an effectual delivery of these deeds, and that a verdict for the defendant was demanded; but there is some evidence tending to show that the grantor, at the time she gave these directions, was mentally incapable of transacting business, and for this reason incapable of giving any valid directions in this matter. Furthermore, it was a question of fact for the jury to find whether the above instructions were given in the language employed. So questions of fact as to the mental capacity of the grantor and the exact character of the above instructions are raised, and these can only be solved by 'a jury. If the jury should find that these directions were given, — 238 — and that the grantor at the time was possessed of sufficient strength of mind to clearly understand the nature and effect of her act in giving these directions, then they should find in favor of the delivery of these deeds and for the defendant. Because of this issue of fact, we are unable to say that a verdict for the defendant was demanded, on the ground that the deeds had been actually delivered. Judgment reversed. All the Justices concur, except Gilbert, J., dissenting.