Opinion
13013.
FEBRUARY 13, 1940. REHEARING DENIED MARCH 15, 1940.
Complaint for land. Before Judge Mitchell. Dade superior court. July 18, 1939.
F. M. Gleason, for plaintiff in error.
McClure, Hale McClure, contra.
1. The words, by "any legal proceedings or order of court," contained in the devise to B., as set forth in the statement of facts, considered with the context, are sufficiently broad to include proceedings in the court of ordinary by the wife, after death of B., causing the land to be set apart to her as a statutory year's support. The proceeding causing the land to be so set apart to the widow was a breach of the condition, and cause for termination of the estate devised to B.
2. "An estate may be granted upon a condition, either express or implied, upon performance or breach of which the estate shall either commence, be enlarged, or be defeated." Code, § 85-901. "Conditions may be either precedent or subsequent. The former require performance before the estate shall vest; the latter may cause a forfeiture of a vested estate." § 85-902. "Conditions repugnant to the estate granted or to do impossible or illegal acts, or which in themselves are contrary to the policy of the law, are void." § 85-903.
( a) In the instant case the devise of the land in fee was a condition subsequent, inhibiting alienation to the wife of B. or her children directly, or indirectly as by "any legal proceedings or order of court." The restriction against alienation, being limited to one person and her children and not extending generally to all persons, was valid as against the objection that it was repugnant to the estate devised to B. Rood on Wills, 411, § 607; Cowell v. Springs Co., 100 U.S. 55, 57 ( 25 L. ed. 547); Overton v. Lea, 108 Tenn. 505, 554, 555, 556 ( 68 S.W. 250). 21 C. J. 919, 921, § 10, note 22.
( b) The case differs from Wright v. Hill, 140 Ga. 554 ( 79 S.E. 546), Crumpler v. Barfield Wilson Co., 114 Ga. 570 ( 40 S.E. 808), and similar cases applying the doctrine that a condition in a devise of lands in fee simple, altogether preventing alienation, is repugnant to the estate and void.
( c) The restriction upon alienation in the instant case was not void, as contended, on the ground that it was repugnant to the nature of the estate granted, contrary to law, contrary to public policy, and prevented performance of parental duties.
3. "Upon breach of condition subsequent, working a forfeiture, the person to whom the estate is limited may enter immediately." Code, § 85-906. The person to whom the condition subsequent is limited may, upon breach of the condition, "enter peaceably if he can, or assert his right to enter by an action for the recovery of the possession of the land against the grantee and those claiming under him." Moss v. Chappell, 126 Ga. 196 (8) ( 54 S.E. 968); 69 C. J. 1088, § 2326; Wilkes v. Groover, 138 Ga. 407 (2) ( 75 S.E. 353); Plemmons v. Sharp, 156 Ga. 571 ( 119 S.E. 532).
4. The petition in an action instituted by the heirs at law of the testatrix, against the widow of B., to declare a forfeiture of the devise to B., under whom she claimed, and for possession of the land, alleged a cause of action, and was not subject to the general or special grounds of demurrer.
5. The evidence relied on to show an implied trust as alleged in the defendant's answer having been ruled out by the judge, to which there was no exception in the motion for new trial, there was no evidence on which to base a verdict setting up an implied trust, whether or not such remedy was barred by the statute of limitations.
6. The answer attacked the title of the testatrix, and the deed to her executed by B., under which the testatrix claimed, as fraudulent and void, because the deed was without consideration and based on a collusive transaction between them, after separation between B. and S. as husband and wife, for the sole purpose of defeating the defendant's claim for support and alimony. On the principles governing fraudulent transactions between parties to avoid payment of debts, the evidence was sufficient to carry the case upon this question to the jury. Wood v. Wood, 166 Ga. 519 (2, 3) ( 143 S.E. 770).
7. The defendant's case does not depend upon application of the Code, § 30-112, which declares: "After suit for divorce has been filed, no transfer by the husband of any of the property, except bona fide in payment of preexisting debts, shall pass the title so as to avoid the vesting thereof according to the final verdict of the jury in the cause."
8. If the deed from B. to the testatrix was void for the reasons just indicated, the testatrix did not get title which she could devise to B., but the title would remain in B. unaffected by his conveyance thereof, and the devise back to him would be subject to the statutory year's support set apart to his widow. The judge therefore erred in directing the verdict for the plaintiffs.
Judgment reversed. All the Justices concur.
No. 13013. FEBRUARY 13, 1940. REHEARING DENIED MARCH 15, 1940.
On May 1, 1930, a testatrix devised to B. described land located in Dade County, Georgia, which had been conveyed by B. to the testatrix by deed dated April 30, 1930. It was stated in the will that the devisee "takes absolute title to said realty and may dispose of same, but with this condition, to wit: None of said land nor the proceeds thereof, nor any money derived from the sale of same, shall ever pass to . . the present wife of . . B., or to any of her children, either by mutual agreement or by any legal proceedings or order of court; and in the event any such attempt is made, then the said B. forfeits all of his rights to said land or proceeds thereof, and it reverts to my estate and passes to my lawful heirs, to be distributed according to the statute of Georgia." The testatrix died in 1936, and the will was duly probated. B. died intestate in 1937. In January, 1938, the court of ordinary of Dade County, on application of S., the widow of B., set apart the land to the widow as a statutory year's support, and she entered into possession in pursuance thereof. The heirs at law of the testatrix brought suit against the widow to declare a forfeiture of the title granted to B., and a reversion to the estate of testatrix, for distribution to plaintiffs, and for recovery of the land; all on the ground that the widow, by procuring the land to be set apart as a statutory year's support, had breached the condition and caused a forfeiture of the title taken by B. under the terms of the will. The defendant's demurrer to the petition was overruled, and she excepted pendente lite. She filed an answer which was twice amended. So far as is material, the uncontradicted evidence in addition to the foregoing showed substantially the following: B. was married to S. in November, 1928, and they at once commenced to reside on the land in question. In January, 1929, they moved to Tennessee, where they separated in May of the same year. While thus in a state of separation B., nephew of the testatrix, on April 30, 1930, executed to her the above-mentioned deed conveying the land in question on a purported consideration of $500, and on the following day the testatrix executed the will containing the devise in question to B. The testatrix entered into and retained possession, and died in possession in September or October, 1936. The marital relation between B. and S. was never resumed. On May 21, 1930, B. instituted in the court of Tennessee a suit for divorce against S., and on August 2, 1930, S. filed an answer in the nature of a cross-bill, seeking divorce, alimony, and injunction to prevent alienation by B. of an automobile and a promissory note issued by the testatrix to B. That suit was disposed of in 1932, by the court's dismissal for want of prosecution. B. continued in possession of the land after his marriage until his conveyance to the testatrix. After the death of the testatrix B. resumed possession under the devise in the will, and remained in possession until he died on November 20, 1937. The year's-support proceedings were instituted on December 6, 1937, and the final report of the appraisers setting apart the land in question was ordered to record at the January term, 1938, and duly recorded.
At the conclusion of the evidence introduced by both sides, the judge, on objection of the plaintiffs, ruled out evidence of defendant as to payments by S. in 1928 of certain amounts advanced by her to pay part of the purchase-money, and for improvements on the land, relied on to set up an alleged implied trust; the ruling being on the ground that the payments were made more than seven years before the filing of the answer seeking to set up an implied trust, and consequently that remedy was barred by the statute of limitations. After announcing this ruling, the judge directed a verdict for the plaintiffs. The defendant's motion for new trial was overruled, and she excepted. There was no complaint in the motion of the ruling excluding the evidence. Error is assigned on the refusal of a new trial, and on the ruling excepted to pendente lite.