1. The recitals in a private deed are binding only on the parties thereto and their privies, and are not evidence against one not claiming under the deed.
2. A tender of the amount due under the provisions of a contract providing for the redemption of land, when properly made, is the equivalent of performance; and, where payment is refused when legally tendered, such tender satisfies the statutory requirement of payment.
3. Although instructions of the court to the jury may state the law correctly in the abstract, yet, if they are not authorized by the evidence in the case, they are erroneous, and, if it is not apparent that the jury could not have been misled or confused by them, they are cause for a new trial.
4. The law applicable to a case on trial should be given to the jury by the charge and to the extent of covering all substantial issues made by the pleadings and by the evidence, whether requested or not.
5. The general grounds of the motion are not passed on.
On February 17, 1945, for a consideration of $469.50, W. W. Barron Jr. conveyed to J. J. Barron a described lot of land in Jones County, Georgia, containing 202 1/2 acres. By that deed the grantor reserved a right to redeem the conveyed premises at any time within two years from the date of his deed by repaying the purchase money, with interest at the legal rate. His deed was duly recorded March 18, 1946. On April 10, 1946, and for a recited consideration of $10 and other valuable considerations, W. W. Barron Jr. conveyed the same land to Guy L. Anderson and J. Pierce Anderson. That deed recites: "By virtue of the privilege of redemption within two years from February 17, 1945, this being the date I deeded to said J. J. Barron the above described property, I have this day tendered to J. J. Barron the principal sum of $469.50 and the sum of $38.40 interest, this being the legal rate of interest as contracted for, this sum being tendered to him in U. S. currency and at the same time a quit-claim deed was presented to him to sign conveying the above described property back to me, W. W. Barron Jr., and the said J. J. Barron fails and refuses to convey this property to me according to agreement in the deed I gave him; now, I am selling and conveying to parties of the second part the above described land, and conveying to them, for a valuable consideration, all right, title, interest, and privilege that I may have by law or equity towards redeeming this property for themselves, their heirs and assigns as against the said J. J. Barron, his heirs and assigns. Party of the first part also tendered to J. J. Barron all taxes paid on said property by him." As such grantees, the two Andersons brought an equitable suit against J. J. Barron in the Superior Court of Jones County on September 30, 1946, and prayed that he be required to specifically perform his contract with respect to said land, and that he be required to convey the subject land to them by quitclaim deed. The allegations of their petition need not be set out here, since they are fully reported in a former appearance of this litigation in Barron v. Anderson, 204 Ga. 7 (48 S. E. 2d, 846), where it was held that their petition stated a cause of action for specific performance. The defendant, by his answer, denied the allegations of the petition, and by amendment averred that, after the execution and delivery of the deed containing the redemption agreement, W. W. Barron Jr., in consideration of other and further payments of money to him by the defendant, agreed that the provision for redemption would not be insisted upon and that the defendant should and would have complete and absolute title to the land. The case then proceeded to trial and the court directed a verdict for the plaintiffs. The defendant's motion for a new trial was subsequently overruled, and in Barron v. Anderson, 205 Ga. 487 (53 S. E. 2d, 682), this court reversed that judgment, holding that the trial judge erred on the trial in excluding certain evidence which the defendant offered in support of his amendment.
On the trial now under review the evidence, briefly, was as follows: Guy L. Anderson, one of the plaintiffs, in substance testified: W. W. Barron Jr. came to the office of his son, J. Pierce Anderson, and wanted to sell them the land which he had conveyed to J. J. Barron on September 17, 1945. A few days prior to April 10, 1946, he (the witness) went with W. W. Barron Jr. to look at the property and found no one in possession of it--it was "lying idle" and there was no dwelling or out-house of any kind on it and "hardly a road that you could get to very well." He saw that some trees had been recently cut on it and W. W. Barron Jr. told him that he had sold them to a lumber company. He and J. Pierce Anderson agreed to purchase the land from W. W. Barron Jr. but, before taking a deed to it, they with W. W. Barron Jr. went to the home of J. J. Barron on April 10, 1946, and W. W. Barron Jr. stated to J. J. Barron that he wanted to redeem his land. He furnished the money, and W. W. Barron Jr. offered to pay J. J. Barron the full amount due him according to his deed, both principal and interest. J. J. Barron refused to accept the money when tendered to him by W. W. Barron Jr., and gave no reason for his refusal to accept it, other than saying: "At the time I let you have this money I was letting you have good hard money and now you want to pay me back with easy money." After J. J. Barron had refused to accept the money tendered to him by W. W. Barron Jr., he, at the same time, offered to pay J. J. Barron the full amount due him by W. W. Barron Jr. as shown by the latter's deed to him, and J. J. Barron refused to accept it from him when tendered. J. J. Barron did not at that time say or claim that he had acquired the right of W. W. Barron Jr. to redeem the land in question. J. J. Barron did not then say that he had let W. W. Barron Jr. have any other money since the execution of his deed. Later, but on the same day, W. W. Barron Jr. conveyed the land in question to him and J. Pierce Anderson by warranty deed, and they paid him $600, assumed the payment of an obligation which their grantor was due Mrs. Gladys Barron, and payment of the amount he was due J. J. Barron under his deed of September 17, 1945. Again, on September 6, 1946, he offered to pay J. J. Barron the full amount due him by W. W. Barron Jr. as shown by the deed of September 17, 1945. At that time he had sufficient money in his hand with which to do so, and J. J. Barron refused to accept it when so tendered.
J. Pierce Anderson, the other plaintiff, testified in substance: W. W. Barron Jr. came to his office just prior to April 10, 1946, and wanted to sell him and his father, Guy L. Anderson, the land which he had on September 17, 1945, conveyed to J. J. Barron. His father examined the land. He and his father agreed to buy the land from W. W. Barron Jr., and they with W. W. Barron Jr. went to the home of J. J. Barron for the purpose of paying him an amount sufficient to redeem the land according to W. W. Barron Jr.'s deed to J. J. Barron, which he had seen of record. They intended to pay him $469.50 principal, $38.35 interest, and $54.20 as tax which J. J. Barron had paid on the property, but his father carried with him to the home of J. J. Barron about $1200. At J. J. Barron's home, his father handed W. W. Barron Jr. a roll of money, and the latter, speaking to J. J. Barron, said: "I have come to redeem my land." J. J. Barron got mad, couldn't talk, and W. W. Barron Jr. handed the roll of money back to Guy L. Anderson, who, speaking to J. J. Barron, said: "Pierce and I are going to buy this land and we are tendering you the money." J. J. Barron refused to take the money tendered to him by his father. J. J. Barron then stated to him that he wanted to show him something. He got some papers and said: "Here is what he owes me right here in good hard money, here is what he owes me." J. J. Barron never at any time said that he had purchased W. W. Barron Jr.'s right of redemption. He and his father later during the same day purchased the land in question from W. W. Barron Jr., took a deed to it from him, and as consideration paid him $600, assumed the payment of an obligation which W. W. Barron Jr. was due Mrs. Gladys Barron, and also assumed payment of the amount due J. J. Barron as shown by W. W. Barron Jr.'s deed to him. He was with his father at Bradley, Georgia, on September 6, 1946, and saw him tender J. J. Barron the amount due him by W. W. Barron Jr. according to his deed. J. J. Barron again got mad and refused to take the money so tendered. This witness, on cross-examination, said that he did not intend to pay J. J. Barron any amount of money while at his home on April 10, 1946, unless he signed a quitclaim deed for the land in question.
J. J. Barron, as a witness for himself, in substance testified: W. W. Barron Jr. was his brother. Guy L. Anderson, J. Pierce Anderson, and W. W. Barron Jr. came to his home on April 10, 1946. He had no conversation with J. Pierce Anderson or W. W. Barron Jr. He talked to Guy L. Anderson, who said to him, "I bought Will's land, here is your money." Guy L. Anderson at that time had some money in his hand, a roll of money. He said to him, "Guy, how do you know how much money Will owes me?" Guy L. Anderson said to him, "What is on record and that is all I will pay." He tried to show Guy L. Anderson what W. W. Barron Jr. owed him. He also had a letter he wanted Guy L. Anderson to look at, but he would not let him show him what W. W. Barron Jr. owed him, nor would he look at the letter. As Guy L. Anderson started out of the house, he said, "Here is your money." He told J. Pierce Anderson that he had let W. W. Barron Jr. have over $150 since the deed was made to him on February 17, 1945, but he did not tell any of them that he had acquired W. W. Barron Jr.'s right of redemption, as they did not give him time to do so. When Guy L. Anderson said, "Here is your money," he did not say how much he had. His brother had stated to him a number of times that the land in question belonged to him, but he did not tell the Andersons that. About September 6, 1946, Guy L. Anderson met him on the street at Bradley, Georgia, and said to him, "What you going to do about it?" and he told him that he was not going to do anything about it as he was still standing on his warranty deed, and that his brother W. W. Barron Jr. had put the redemption clause in the deed without his consent. Since purchasing the land in question from W. W. Barron Jr. he has been in possession of it by letting pine trees grow on it, posting it with notices signed by himself, keeping fire off of it, cutting some timber from it for posts, and paying the taxes on it. He left home at 5 o'clock every morning, got back at 6:30 in the afternoon, and for that reason did not have time to go to the place where the land in question was located.
J. J. Barron Jr., as a witness for the defendant, in substance testified: He was present during December, 1945, when his father paid W. W. Barron Jr. $40 in cash and when he assumed payment of a note for about $45 which W. W. Barron Jr. was due a Macon bank, in relinquishment of his right to redeem the land in question. For those considerations, W. W. Barron Jr. at that time agreed that he had no further interest in or right to redeem the land which he had conveyed to J. J. Barron on September 17, 1945. He was discharged from the Navy during July, 1946, and after that his father posted the land with notices signed by himself. They also cut several wagon loads of posts from the land in question and put up fences around the house at their home. There were, he thought, about 2 1/2 or 3 acres that they cut the wood off of and fenced.
The plaintiffs introduced and the court allowed in evidence the following documents: (a) A deed from W. W. Barron Jr. to J. J. Barron, dated February 17, 1945, and recorded March 18, 1946; (b) a deed from W. W. Barron Jr. to Guy L. Anderson and J. Pierce Anderson, dated April 10, 1946, and recorded April 12, 1946, except the above-quoted recitals, which were on objection by counsel for the defendant excluded; and (c) a paper signed by W. W. Barron Jr., Guy L. Anderson, and J. Pierce Anderson, dated April 10, 1946, which reads: "The following is a memorandum showing land transaction between W. W. Barron Jr., Guy L. Anderson, J. Pierce Anderson in Re: the Hunt place, wherein W. W. Barron Jr. is selling this land to Guy and Pierce Anderson, same being 202 1/2 acres. Guy and Pierce are paying for this land as follows: They are paying W. W. Barron Jr. cash $600 and are to pay J. J. Barron the sum of $469.50 principal and $38.35 interest to April 17, 1946, and $53.24 tax for 1942, 43, 44 and 1945. Guy and Pierce agree and assume one mortgage in favor of Mrs. Gladys Barron for $484.70 principal due August 1, 1942, and $124.24 interest due to May 1, 1946, making a total they are to pay on this deed to secure debt to her $808.94 and future interest if any . . ." The defendant introduced and the court allowed in evidence several letters which J. J. Barron had received from W. W. Barron, one of which was written after April 10, 1946, and the others in 1942. The first was a request that J. J. Barron sign a quitclaim deed to the land in question, and the others were in substance requests for loans of money. The trial resulted in a verdict for the defendant. The plaintiffs, in due time, moved for a new trial, later amended their motion by adding several special grounds, and the amended motion was subsequently overruled. The plaintiffs excepted.
(After stating the foregoing facts.) 1. The plaintiffs offered, and the court allowed in evidence, a deed dated April 10, 1946, from W. W. Barron Jr. to them, except those recitals in the deed which are quoted in our statement of the facts. It is alleged in ground 4 of the amendment to the motion for new trial that the judge erred in excluding the recitals. Special ground 5 alleges that the judge also erred in charging the jury as follows: "Now, gentlemen, there was introduced in evidence on the trial of this case a deed from W. W. Barron Jr. to Guy L. Anderson and J. Pierce Anderson. This deed was admitted in evidence with the proviso that certain provisions appearing in the deed were stricken by the court and should not be considered by the jury. The provisions of the deed which have been stricken by the court have been indicated by marks of parentheses and I will ask counsel to show these provisions to you, and the court charges you and cautions you that you are not to consider these provisions at all in reaching your verdict in this case, but they must be totally disregarded by you." The plaintiffs in error contend that the exclusion of the recitals and the charge relating to them were erroneous and harmful because the clause was a description of an inchoate right made perfect by tender; there is no provision of law for excluding a part of a deed to which there was no demurrer, but which, as a part of an exhibit to a deed, was upheld as against a motion to dismiss; it was unnecessary for the protection of the defendant to exclude the language; and the charge complained of was rendered especially harmful in view of the further charge "that it was incumbent upon the plaintiffs to make a certain and unconditional tender to the defendant of the principal of $469.50 with interest from February 17, 1945," excluding thereby from the jury's consideration any tender which W. W. Barron Jr. may have made. This position is clearly untenable. A conversation between the parties to this deed would be, as to any third person, simply hearsay; and the fact that their declarations were reduced to writing and incorporated in their deed as recitals does not in the slightest degree change the rule making such declarations inadmissible in evidence against other persons. Howard v. Snelling, 32 Ga. 195; Yahoola River &c. Mining Co. v. Irby, 40 Ga. 479; Cruger v. Tucker, 69 Ga. 557, 562; Heard v. Nix, 96 Ga. 51 (23 S. E. 122); Dixon, Mitchell & Co. v. Monroe, 112 Ga. 158 (3) (37 S. E. 180); Tift v. Golden Hardware Co.,
204 Ga. 654 (51 S. E. 2d, 435). "Recitals in a private deed only bind parties and privies, and are not evidence against one not claiming under the deed." Hanks v. Phillips, 39 Ga. 550. "The recitals in a deed made in pursuance of an order of court, or by virtue of legal process, are sometimes, for certain purposes, evidence of their truth, but parties cannot, in a voluntary contract between themselves, make their 'recitals' evidence against anybody else as to prior existing rights." First National Bank v. Cody, 93 Ga. 127, 144 (19 S. E. 831). The recitals in W. W. Barron Jr.'s deed to the plaintiffs were inadmissible as evidence against J. J. Barron, and they were, therefore, properly excluded and the charge respecting them was entirely proper. Accordingly, there is no merit in grounds 4 and 5 of the amended motion.
2. The judge instructed the jury: "I charge you in this case that it was incumbent upon the plaintiffs to make a certain and unconditional tender to the defendant of the principal sum of $469.50, with interest from February 17, 1945, and that such tender must have been made within two years from February 17, 1945." Also: "Now, gentlemen, I charge you that if the jury should find that after the delivery of the deed to J. J. Barron by W. W. Barron Jr., that W. W. Barron Jr. did not agree that in consideration of further payments to him by the defendant, J. J. Barron, if you find that such payments were in fact made as alleged, that the provision for redemption in the deed dated February 17, 1945, would not be insisted upon and that J. J. Barron should have full title to the land, as he contends, and if the jury should also find that the plaintiffs made a certain and unconditional tender to the defendant of $469.50 principal, with interest thereon from February 17, 1945, to the date of tender, and within two years from February 17, 1945, then and in that event your verdict should be in favor of the plaintiffs." The movants, in special grounds 6 and 8 of their motion, allege that the quoted excerpts from the charge were erroneous and harmful to them because they excluded from the jury's consideration any tender which may have been made by W. W. Barron Jr. We think that this criticism of the charge is well taken. The judge nowhere instructed the jury that the plaintiffs would be entitled to have the redemption contract specifically performed if W. W. Barron Jr. had himself, prior to his sale, tendered to J. J. Barron the necessary redemption money. A tender properly made is the equivalent of performance. Code, 20-1105. And where payment is refused when legally tendered, such tender satisfies the statutory requirement of payment. Forrester v. Lowe, 192 Ga. 469 (15 S. E. 2d, 719). In the circumstances of this case, and so far as it relates to tender, the plaintiffs were entitled to the relief sought, if they, after their purchase, or W. W. Barron Jr., prior to his sale, made a tender of the redemption money to J. J. Barron; and, concerning this, the evidence shows without any question that W. W. Barron Jr. made a such a tender. The excerpts from the charge, here complained of, were inaccurate and harmful pronouncements of the law and, therefore, erroneous.
3. Grounds 7 and 10 of the motion will be considered together, as each presents substantially the same question. In ground 7 exception is taken to the following charge: "I charge you that possession of land is notice of whatever right or title the occupant has." And in ground 10 exception is taken to the following charge: "Now, gentlemen, I charge you that, if you find that the defendant, J. J. Barron, has shown that subsequently to the delivery of the deed to him by W. W. Barron Jr., that W. W. Barron Jr. in consideration of further payments to him from the defendant, J. J. Barron, agreed that the provision for redemption in the deed dated the 17th day of February, 1945, would not be insisted upon and that J. J. Barron should have complete and full title to the land and that the consideration alleged to have been paid by J. J. Barron as set forth in his amended answer was paid by J. J. Barron to W. W. Barron Jr., as alleged, and you further find that the agreement was entered into and completed prior to the time the plaintiffs contend that they acquired title to the land by deed from W. W. Barron Jr. and an assignment of his right to redeem the land and you find that, at the time of the alleged purchase by plaintiffs, J. J. Barron was in actual possession of the land, then and in that event your verdict should be in favor of the defendant, J. J. Barron." Among other assignments of error on these two excerpts from the charge, is one that they were not adjusted to the evidence since there was no testimony showing that J. J. Barron, at the time plaintiffs purchased the land in question from W. W. Barron Jr., had actual, open, visible, exclusive, and unambiguous possession of it; and, hence; the charges complained of were misleading, confusing, prejudicial and harmful. As to this, it has been so long and so repeatedly held by this court that a charge abstractly correct, but not warranted by the evidence, is erroneous, that we deem it unnecessary to cite any of the great number of cases to this effect. The Code, 85-408, expressly declares that possession of land is notice of whatever right the occupant has; but the possession of land which will be notice of the occupant's right or title must be actual, open, visible, exclusive, and unambiguous at the time of its purchase by another, and the protection which the registration law gives to one taking title to lands upon the faith of the record title requires that proof of such possession be clear and satisfactory. McDonald v. Dabney, 161 Ga. 711 (8) (132 S. E. 547); McDonald v. Taylor, 200 Ga. 445, 451 (37 S. E. 2d, 336); Toms v. Knighton, 199 Ga. 858 (36 S. E. 2d, 315). And possession which gives notice of the occupant's title is not prior possession, but possession at the time another obtains his deed. Webster v. Black, 142 Ga. 806 (3) (83 S. E. 941); Wood v. Bowden, 182 Ga. 329 (6) (185 S. E. 516). The evidence shows without any dispute that there was no dwelling or outhouse of any kind on the land in question; that no part of it was in cultivation; and that it was an isolated and unfenced tract of woodland containing 202 1/2 acres. As to J. J. Barron's possession of it, at the time of the plaintiffs' purchase, the record shows no more than the payment of tax, posting signs thereon forbidding trespass, the occasional cutting and removal of timber, keeping fires off, permitting pine trees to grow, and infrequent visits to it by him. And such acts do not amount to and constitute actual, open, visible, exclusive, and unambiguous possession of land. McCook v. Crawford, 114 Ga. 337 (2) (40 S. E. 225); Gordon v. Ransom & Lomax Lumber Co., 147 Ga. 55 (1) (92 S. E. 892); Dix v. Wilkinson, 149 Ga. 103 (2) (99 S. E. 437); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 (7) (3 S. E 2d, 91); Robertson v. Abernathy, 192 Ga. 694 (1) (16 S. E. 2d, 584); Shahan v. Watkins, 194 Ga. 164 (3) (21 S. E. 2d, 58). The charges complained of in these grounds of the motion were, therefore, not warranted by the evidence; and, since it is not apparent from the record that the jury could not have been misled and confused by them, they are cause for a new trial.
Culberson v. Alabama Construction Co., 127 Ga, 599 (56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507); Gaskins v. Gaskins, 145 Ga. 806 (89 S. E. 1080).
4. Grounds 11 and 12 of the motion raise substantially the came question. They complain of the court's failure to charge the jury that, if they should find from the evidence that there was an executed contract between W. W Barron Jr. and J. J. Barron, canceling and rescinding the redemption agreement in the deed of the former to the latter, the plaintiffs' rights would be unaffected thereby unless they had notice of such contract at the time of their purchase from W. W. Barron Jr. This exception to the charge is well taken. The omission complained of is a correct principle of law. Code, 37-111; Beecher v. Carter, 189 Ga. 234 (5 S. E. 2d, 648). It was applicable to the case, and warranted both by the pleadings and the evidence. This being so, it should have been given, even in the absence of a request. Central Railroad v. Harris, 76 Ga. 501 (1b); Phenix Ins. Co. v. Hart, 112 Ga. 765 (38 S. E. 67).
5. By the rulings made in the preceding divisions, special ground 9 of the motion for new trial is rendered unimportant and need not be specially dealt with; and, since the case must be tried again and the evidence upon another trial may be different, no ruling is made on the general grounds of the motion.
For reasons stated in divisions 2, 3 and 4 hereof, the judgment complained of is erroneous.
Judgment reversed. All the Justices concur.