Opinion
14322.
DECEMBER 1, 1942.
Complaint for land. Before Judge Graham. Bleckley superior court. July 13, 1942.
J. F. Floyd, for plaintiffs in error. L. A. Whipple, contra.
1. Where a deed conveyed land to D., "heirs and assigns, his lifetime, and then to the lawful heirs of his body, then to their heirs and assigns," to have and to hold the same to "said party of the second part, his heirs, executors, administrators, and assigns, in fee simple": Held, that in view of the words "his lifetime" the deed conveyed only a life-estate to D., with remainder to the lawful heirs of his body; and there being no other limitation over, the deed constituted a conveyance to D. for life, with remainder in fee simple to his children. Code, §§ 85-504, 85-505, 85-707; Ewing v. Shropshire, 80 Ga. 374 ( 7 S.E. 554); Crawley v. Kendrick, 122 Ga. 183 ( 50 S.E. 41, 2 Ann. Cas. 643); King v. McDuffie, 144 Ga. 318 (2) ( 87 S.E. 22); Overby v. Scarborough, 145 Ga. 875 ( 90 S.E. 67); Perkins v. Perkins, 147 Ga. 122 ( 92 S.E. 875); Palmer v. Atwood, 188 Ga. 99 ( 3 S.E.2d 63).
2. The foregoing conclusion accords with the Code, § 29-109: "If two clauses in a deed are utterly inconsistent, the former shall prevail; but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect." Also with the ruling in Collinsville Granite Co. v. Phillips, 123 Ga. 830 (6) ( 51 S.E. 666), applying the principle stated in this section. The present case differs on its facts from Griffin v. Stewart, 101 Ga. 720 ( 29 S.E. 29), in which the deed contained no language indicating the grant of a life-estate, with limitation over. Compare Craig v. Ambrose, 80 Ga. 134 ( 4 S.E. 1); Cooper v. Harkness, 188 Ga. 121 ( 2 S.E.2d 918).
3. It appearing from the petition that the plaintiffs as the children of the life-tenant are the designated remaindermen, and that the defendants claim the land solely under a deed from the life-tenant, since deceased, the petition stated a cause of action for recovery of the land, and for cancellation. The court did not err in overruling the general demurrer.
Judgment affirmed. All the Justices concur.
No. 14322. DECEMBER 1, 1942.
John Davis and eight others filed a petition against W. B. English and I. C. English, seeking recovery of a described tract of land in Bleckley County, with rents and profits, cancellation of a certain security deed, and general relief. A general demurrer to the petition as amended was overruled, and the defendants excepted.
The petition alleged substantially the following: The plaintiffs claim title to a tract of land containing 40 1/2 acres, more or less, in land lot 137 in the 22nd district of Bleckley County (describing it), as tenants in common, each owning one ninth undivided interest. Mrs. Sarah Davis is the common grantor under whom the plaintiffs and the defendants claim title.
The plaintiffs claim title under a deed executed and delivered by Mrs. Sarah Davis to J. W. Davis, dated January 17, 1891, and recorded February 5, 1891, "which deed is as follows, to wit:" A copy of the deed is then set out, showing Mrs. Sarah Davis as grantor and J. W. Davis as grantee, in which the party of the first part, for stated considerations, "has granted, bargained, sold, aliened, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, and convey and confirm unto the said party of the second part, heirs and assigns, his lifetime, and then to the lawful heirs of his body, then to their heirs and assigns," the described land sued for. The habendum and warranty clauses of the deed were to "said party of the second part, his heirs, executors, administrators, and assigns, in fee simple."
J. W. Davis, "the life-tenant in the above shown deed," died on January 1, 1941. Petitioners are all of the heirs of the body of said J. W. Davis, deceased, being lawfully begotten children of the said J. W. Davis. The defendant W. B. English holds said land under some pretended title out of J. W. Davis. The defendant I. C. English holds a deed to said land from W. B. English, to secure a described debt owing from the latter to the former. The rental value of said land is $75 per annum.
The ground of demurrer was that the allegations of the petition "show no cause of action against these defendants, and there is no cause set out in said petition."