Witt v. Sims

1. One who had purchased a lot of land signed and delivered to a real-estate broker an instrument in writing as follows: “I have this day purchased through Roff Sims the vacant lot in Atlanta, Georgia, from J. F. Leary [describing the lot]. The said Roff Sims, in making the purchase for me, was obliged to reduce his commission on the sale; and in consideration, I give to him the exclusive sale of the property so long as I own it, and agree to pay him the regular real-estate commission upon it when it is sold, either by himself, myself, or any other person. It is hereby agreed that the real-estate commission be fixed for this sale as 2%% on the dollar.” Held, that there is no law in this State authorizing the record of'such an instrument by the clerk of the superior court; nor is there any law authorizing the record of an entry upon it, by which the promisee in the paper sought to transfer a half interest in the contract to another. 2. Had the agreement set out in the first headnote been a recordable paper if properly attested, it could not be properly recorded on the affidavit of the promisee therein that he saw the promisor sign it. 3. Such a paper was not a cloud upon the title of the promisor. It did not purport to convey any title, to or interest or easement in the land, or to create any lien upon it, or to affect the title thereto; but it was merely a promise to allow the promisee the exclusive right to sell such land as a broker so long as it was owned by the promisor, and to pay the broker certain commissions, should the land be sold by him, the owner, or any other person. 4. In the absence of a statutory provision, the superior court will not, at the instance of the maker of a contract not properly recordable, order or decree the cancellation of the record thereof on the deed books by the clerk, as matter of course; but the asserted right to cancellation of the paper and of an unlawful record thereof will be determined under the general law governing the right to have instruments canceled. 5. The petition in this case did not show a case for the cancellation of the instrument involved, as being an instrument which had answered the object of its creation, or a “forged or other iniquitous deed or other writing, which, though not enforced at the time, either casts a cloud over complainant’s title or otherwise subjects him to future liability or present annoyance, and the cancellation of which is necessary to his perfect protection,” under the Civil Code, § 5465; nor did the allegations make a case for the cancellation of a cloud on the plaintiff’s title, under the Civil Code, §§ 5466, 5468. . ' (a) There was no allegation of fraud or wrong in the procurement of the instrument by the promisee therein, and the only ground of attack upon it was an allegation that it was made without a present consideration therefor. No insolvency was alleged, no danger of loss shown, and no reason why want of consideration, if it existed, could not be as well set up in defense to a suit upon it as by equitable, petition, or why equitable relief was necessary.

Equitable petition. Before Judge Pendleton. Fulton superior court. June 27, 1912. Carl Witt brought an equitable petition against Roff Sims, W. E. Wimpy, and the clerk of the superior court. He alleged in'substance as follows: On the second day of January, 1909, the plaintiff entered into a writing with Roff Sims, which was as follows: “Atlanta, Ga., January 2nd, 1909. I, having this day purchased through Roff Sims the vacant lot in Atlanta, Georgia, from J. F. Leary, situated on the northeast corner of Peachtree street and East Harris street, being one hundred (100) feet on Peachtree street by one hundred and fifty-four (154) feet deep. The said Roff Sims, in making the purchase for me, was obliged to reduce his commission on the sale; and in consideration, I give to him the exclusive sale of the property so long as I own it, and agree to pay him the regular real-estate commission upon it when it is sold, either by himself, myself, or any other person. It is hereby agreed that the real-estate commission be fixed for this sale as 2%% on the dollar.” This writing was entered into after the plaintiff had purchased the property therein described, which property is owned by him, he having purchased it from J. F. Leary. It was given for a past consideration, and is therefore without consideration, and is null and void. It casts a cloud over the plaintiff’s title to the property, and subjects him to annoyance and liability. On or about December 30, 1909, Sims attempted to transfer to W. E. Wimpy a half interest in the writing above set out, such assignment being as follows: “Atlanta, Ga., Dec. 30th, 1909. ($750) For and in consideration of the' sum of seven hundred and fifty dollars, I hereby transfer and assign to W. E. Wimpy one half interest in the above contract, the receipt of which is hereby acknowledged.” On February 25, 1911, Roff Sims attempted to probate the writing first above set out, and, for the purpose of having it recorded on the records of the clerk of the superior court, made an affidavit before a notary public of the county, stat-. ing that he saw Carl Witt “sign the above obligation, dated January 2, 1909, on said date.” On or about February 25, 1911, Sims or Wimpy filed the writings above referred to with the clerk of the superior court, with the request that they be recorded. The clerk recorded them on March 2, 1911, in a book kept for recording deeds. This writing could not be assigned, and any attempt to assign an interest in it was void. The attempted probate was void. The papers were not entitled under the law to be recorded in the clerk’s office, and the clerk had no legal authority to record them. The plaintiff has no other course to protect his rights than the one here pursued. He prays that the papers herein set out canceled, rand delivered up; that the clerk of the superior court be required to expunge them from the records) that the attempted assignment by Sims to Wimpy be declared null and void; and for process. The defendants demurred to the petition. The judge sustained the demurrer and dismissed the petition, and the plaintiff excepted.