Harper v. Paradise

Supreme Court of Georgia · 1974 · Property

Propertylife estateremainderunrecorded deedlost deedquitclaim deedsecurity deednotice

Facts

In 1922, Susan Harper conveyed a farm to Maude Harper for life, with remainder in fee simple to Maude's named children, but the deed was lost or misplaced and not recorded until 1957. After Susan died, three of her heirs in 1928 executed a recorded instrument to Maude Harper stating that Susan had previously conveyed the property to Maude, that the earlier deed had been lost or destroyed, and that the new deed was intended to take its place. In 1933, Maude executed a security deed purporting to convey the fee simple, the property was foreclosed, and appellees later acquired through an unbroken chain from the foreclosure purchaser. Appellees also claimed title by adverse possession beginning in 1940, but the life tenant did not die until 1972, when the named remaindermen brought this action.

Issue

Whether appellees, who claim through a foreclosure of a security deed executed by the life tenant and through a 1928 deed from some of the original grantor's heirs, acquired title superior to the named remaindermen under the earlier 1922 deed. Also, whether appellees and their predecessors acquired prescriptive title against the remaindermen before the life tenant died.

Rule

Code § 67-2502 does not protect a purchaser where the deed from heirs itself shows notice of a prior unrecorded conveyance and negates that the heirs were holding or apparently holding by inheritance free of that prior deed. A later recorded deed cannot gain priority under Code § 29-401 over an earlier deed when the later deed's recitals put the grantee and subsequent purchasers on notice of the earlier deed and require diligent inquiry into its contents. Prescription in favor of a grantee under a deed from a life tenant does not begin to run against remaindermen who did not join in the conveyance until the life estate ends by the life tenant's death.

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In Macon, Georgia, Lena Ortiz executed a deed in 1930 conveying Blackacre to her niece, Dana Ortiz, for life, remainder to Dana's three named children. The deed was delivered but not recorded. After Lena died, two of Lena's heirs executed and recorded a 1934 quitclaim deed to Dana stating that Lena had previously conveyed the same land to Dana in an earlier deed that had been lost, and that the new instrument was intended to replace that earlier deed; Dana later mortgaged the property as though she owned the fee, and the foreclosure buyer's successor now claims title against Dana's children after Dana's death.

Who has the better title after Dana's death?

Explanation. A later recorded deed does not obtain priority over an earlier deed from the same source when the later deed itself recites the earlier lost deed and thus gives notice requiring diligent inquiry. Those recitals also defeat reliance on the heirs-purchaser protection because they show the heirs were not holding or apparently holding free of the prior conveyance by inheritance. A purchaser through Dana could acquire no more than Dana's life estate unless the remainder was validly cut off, which it was not. (Derived from Harper v. Paradise (n.d.).)