Opinion
14876.
JULY 11, 1944.
Cancellation, etc. Before Judge A. L. Etheridge. Fulton superior court. March 2, 1944.
John H. Hudson, for plaintiffs in error.
Robert B. Blackburn and Carl F. Hutcheson, contra.
1. Where the grantor in a security deed to E. U. Afterwards conveyed a described 1Qt to J. G. H., and the latter deed contained on the back thereof an undated endorsement signed by E. U. releasing the lot from the security deed; and where E. U., after subsequently exercising its power of sale and taking over the property, executed a deed to C. M. M. conveying more than three hundred lots, but excepting all lots that had been released from the lien of the security deed, the grantee did not thereby acquire the lots so excepted; and in a suit by J. G. H. (whose deed was executed before but not recorded until after the deed to C. M. M.), for the cancellation of a deed executed by C. M. M. conveying to A. N. M. the lot in dispute, the court did not err in instructing the jury that the sole issue for them to determine was whether the undated release was entered on the back of the petitioner's deed before the execution of the deed from E. U. to C. M. M., and that, if so, they should find in favor of the petitioner.
Nor did the court err, as against the defendants, in charging the jury that, if the undated release was entered on the petitioner's deed after the execution of the deed from E. U. to C. M. M., they should find in favor of the defendants.
The evidence was sufficient to support the verdict.
No. 14876. JULY 11, 1944.
J. G. Holtzclaw filed a petition in Fulton superior court against C. M. Mendenhall and A. N. Martin to cancel a deed from Mendenhall to Martin.
The pleadings and the evidence made substantially the following case: On September 12, 1927, Lillian D. Finn executed a deed with power of sale to Emory University, by which she conveyed to the university a large number of lots in Jefferson Heights subdivision to secure a note for $23,500. On April 21, 1928, she contracted to sell one of the lots to Holtzclaw, described as a vacant lot on the west side of Batania Street, known as lot 17 of block B of Jefferson Heights subdivision, for which Holtzclaw paid her $50 in cash, and gave promissory notes for the balance of the purchase-price. Holtzclaw paid these notes, and on December 12, 1931, Lillian D. Finn conveyed the lot to him by warranty deed, with the following endorsement on the back of the deed: "For value received Emory University hereby quitclaims and releases to Mrs. Lillian D. Finn the property described in the attached deed, to wit: lot 17, block No. B of the Jefferson Heights subdivision. This release being intended to release said lot from loan deed heretofore given by the said Mrs. Lillian D. Finn to the Emory University covering the entire tract of land of which this lot is a part." The above release was not dated, but was duly signed by Emory University. The deed containing the release was recorded on September 23, 1941. On July 13, 1937, Emory University, having exercised its power of sale and become the purchaser of Mrs. Finn's equity in the subdivision, executed a warranty deed to Mendenhall. This deed, after describing land that would include over three hundred lots in the subdivision, contained the provision: "Excepting . . all lots released from the lien of the loan deed from Mrs. Lillian D. Finn to Emory University, . . by quitclaim deed or otherwise." On November 12, 1940, Mendenhall executed a deed conveying the land known as lot 17 of block B to Martin. The deeds from Emory University to Mendenhall and from the latter to Martin were duly recorded.
On the trial Holtzclaw testified that the endorsement was on his deed at the time he received the deed. He also testified as to putting up a for-sale sign on the lot, containing his name and telephone number, and as to the payment of taxes. Mendenhall testified that three hundred and thirty lots were included in the deed under which he was claiming; that before buying the lots he had an attorney to pass on the title, and after buying them he proceeded to sell them; that he was on the lot involved every few days over a period of two years; that he had a selling organization there every day for possibly fifteen to eighteen months from the date of his deed, and did not see any sign on the lot with Holtzclaw's name and telephone number on it. Martin testified that he was an innocent purchaser from Mendenhall, and had no notice of Holtzclaw's deed to the lot.
The jury returned a verdict in favor of Holtzclaw. The exception is to an order overruling the defendants' motion for new trial.
(After stating the foregoing facts.) 1. The first special ground of the motion for new trial complains because the judge instructed the jury: "In the record there is a deed dated the 12th day of December, 1931, from Lillian D. Finn to J. G. Holtzclaw, which deed has on it what is called an endorsement or quitclaim provision, or release provision, signed by Emory University to Lillian D. Finn, releasing the property described in the deed from any interest that Emory University might have in it as a result of any outstanding lien that it had upon this and other property. This release or quitclaim is not dated. Now, I think this case turns upon this single issue, to wit: Was this deed and the release contained thereon, and which deed is from Finn to Holtzclaw, delivered to Holtzclaw prior to the date of the deed from Emory University to Mendenhall, the date of that deed being the 13th day of July, 1937? If the deed from Finn to Holtzclaw, and if the release thereon, and if the same was thereon, and was delivered to Holtzclaw prior to the 13th day of July, 1937, then I charge you that the plaintiff in this case would be entitled to prevail." Exception is taken to the above charge because, as contended, it amounted to the direction of a verdict against the defendants, whereas, since the Holtzclaw deed was not recorded until 1941, the jury should have been instructed that it must be made to appear from the evidence that notice in some form was brought to the attention of the defendants before July 13, 1937. It was further contended, among other things, that the charge was not properly adjusted to the pleadings and the evidence.
The cardinal rule in construing deeds, as well as other instruments, is that "the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect." Code, § 29-109; Keith v. Chastain, 157 Ga. 1 ( 121 S.E. 233); Simpson v. Brown, 162 Ga. 529 ( 134 S.E. 161, 47 A.L.R. 865). It is always competent for the vendor, in conveying to the vendee the fee in land, to except some part of the land conveyed, or to reserve to himself, his heirs and assigns, certain rights in the land. The office of an exception is to take something out of the thing granted, which otherwise would pass. 16 Am. Jur. 607, § 298; 18 C. J. 340, § 339; 26 C. J. S. 439, § 137; Collinsville Granite Co. v. Phillips, 123 Ga. 830 (6) ( 51 S.E. 666); Georgia Vitrified Brick Clay Co. v. Georgia Railroad Banking Co., 148 Ga. 650 ( 98 S.E. 77); Grant v. Haymes, 164 Ga. 371 (2) ( 138 S.E. 892).
In the case under review, Mrs. Finn, the grantor in a security deed to Emory University, conveyed a described lot to Holtzclaw, her deed to him containing an undated endorsement signed by Emory University, releasing the lot from the security deed. Subsequently, Emory University, having exercised its power of sale and taken over the property, executed a deed to Mendenhall conveying more than three hundred lots, but excepting all lots that had been released to Mrs. Finn from the lien of the security deed. In the above circumstances, it was clearly the intention of the grantor in the deed from Emory University to Mendenhall, conveying more than three hundred lots, not to convey certain lots that had been so released to Mrs. Finn. The Code, § 29-401, declares: "Every deed conveying lands shall be recorded in the office of the clerk of the superior court of the county where the land lies. The record may be made at any time, but such deed loses its priority over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first." This section is not applicable to the instant case, for the reason that the lot in dispute was not conveyed from Emory University to Mendenhall. Therefore, in so far as the lot in dispute is concerned, the parties were not claiming under a deed from the same grantor. It does not appear from the record in this case that the defendants made any inquiry of Emory University or of Mrs. Finn as to which lots had been released from the security deed. Had they done so, and found that it was impossible to discover which lots had been released, a different question might have arisen. Under the pleadings and the evidence, the court did not err, as against the defendants, in instructing the jury as complained of in the first special ground.
2. The second special ground complains of the charge: "If on the other hand, you find that the deed from Finn to Holtzclaw . . or the release from Emory University as contained thereon was delivered to Holtzclaw on or after the 13th day of July, 1937, then in that event, the defendants would be entitled to prevail. That, and that alone, is for decision by the jury." For the reasons stated in the first division of this opinion, the court did not err, as against the defendants, in instructing the jury as set forth above.
3. The uncontradicted evidence showing that the endorsement of release was on the deed from Mrs. Finn to Holtzclaw at the time the deed was delivered to him on December 12, 1931, the evidence was sufficient to support the verdict, and the court did not err in overruling the defendants' motion for new trial.
Judgment affirmed. All the Justices concur, except
DUCKWORTH, J., who dissents on authority of the ruling in Archer v. Kelley, 194 Ga. 117 ( 21 S.E.2d 51).