Opinion
16173.
APRIL 15, 1948.
Levy and claim. Before Judge A. M. Anderson. Crawford Superior Court. January 21, 1948.
W. J. Wallace, for plaintiffs.
W. B. Mitchell and W. D. Aultman, for defendants.
1. In the construction of deeds the paramount, essential, and controlling rule is to ascertain the intention of the parties, and if that intention is plain and contravenes no rule of law, it should be given effect regardless of mere literal repugnancies in different clauses of the conveyance. The intention may be ascertained from the language of the deed as a whole and the surrounding facts, such as the continued possession of the grantor after execution and delivery of the deed.
2. Where a deed contained granting and habendum clauses in the usual form where an absolute title was conveyed, but immediately following the granting clause it was recited that, "It is understood that party of the first part shall have the rents, issues and profits from the said land for and during her natural life," and it was stipulated between the parties in a claim case that the grantor had remained in possession of the lands since the date of the deed, a finding was authorized that by the conveyance a life estate was reserved to the grantor.
3. Where, after obtaining a judgment against the grantor in the aforementioned deed, the plaintiff caused an execution to be issued and a levy to be made on a portion of the lands conveyed by the deed, the entry of the sheriff reciting that the levy was made on the life estate of the grantor therein, and the grantees filed a claim to the said lands, contending that the reservation clause in the deed was repugnant to the granting clause and must yield thereto and was impotent, and that if valid only a usufruct at most was reserved, the judge to whom the issue was submitted did not err in ordering the execution to proceed.
No. 16173. APRIL 15, 1948.
On November 6, 1944, Mrs. Lizzie Mitchell executed and delivered to Mrs. Mary O'Neal, Mrs. Vallie Baggarley, Mrs. Ruby Harris, James Mitchell, and H. C. Mitchell a deed to described realty in Crawford County, Georgia. This deed contained granting and habendum clauses in the usual from where a fee-simple title is conveyed, but immediately after the granting clause the following provision was incorporated: "It is understood that party of the first part shall have the rents, issues and profits from said land for and during her natural life."
On October 24, 1946, Mrs. Mary Lee Spillers, as administratrix of the estate of Mrs. Henrietta Mitchell, recovered in the Superior Court of Crawford County against Mrs. Lizzie Mitchell, grantor in the aforementioned deed, a judgment for $876 and costs. Thereafter an execution issued, and on July 7, 1947, a levy was made by the sheriff on 303 1/2 acres of the land conveyed by the above-mentioned deed, the entry of the sheriff reciting that the levy was made on the "life estate of Mrs. Lizzie Mitchell in" the said land.
On July 8, 1947, the grantees in the above-mentioned deed filed a claim to the land levied on. The case came on for a hearing, and it was agreed by all parties that the presiding judge should hear and determine the cause upon all questions of law and the following stipulated contentions and facts in addition to those above stated: "The plaintiff contends that the deed from defendant to claimants reserved a life interest in defendant and which was subject to levy and sale to satisfy said fi. fa. . . Plaintiff concedes that, if the defendant has no life estate in the lands, the claim should be sustained. Claimants contend that the defendant has no life estate in said lands and no interest that can be levied on and sold to satisfy any judgment against defendant, and claimants concede that, if the defendant has a life estate in the lands, this is subject to levy and sale and a finding to the effect that defendant has a life estate in said lands, then the judgment and decision of the court should be a finding that the life estate is subject to levy and sale, and the life estate only found subject to plaintiff's judgment, and the judgment of the court finding that said life estate was and is subject to levy and sale. The question of whether or not claim was filed for purpose of delay only is submitted to the court for decision. . . It is further stipulated that in instant case the plaintiff only seeks to subject to said execution the life interest of and in lands involved in the instant case. . . The questions and issues to be determined by the court [are]: Did the defendant reserve a life estate in said lands described in deed to claimants that is subject to levy and sale? Defendant in fi. fa. has been living on the land since date of deed. Was the claim filed and interposed for purposes of delay only? If the claim was filed for purpose of delay only, then plaintiff is [entitled?] to judgment for damages, the amount of such damages being limited to 10 percent. It is agreed that the court pass on the issues of law and fact . . and hear and determine said issues in vacation at any time in the discretion of the court."
The court rendered judgment ordering the execution to proceed against the land levied upon and that the plaintiff in execution recover the costs of court, and finding that the claim was not filed for the purpose of delay only. The exception by the claimants is to that judgment.
It is always competent for the grantor in a deed to convey the fee to another and except some part of the land conveyed or reserve to himself, his heirs and assigns, certain rights in the land. Grant v. Haymes, 164 Ga. 371, 377 ( 138 S.E. 892); Mendenhall v. Holtzclaw, 198 Ga. 95, 98 ( 31 S.E.2d 171). The reservation here is that the grantor shall have the rents, issues, and profits from the conveyed land for and during her natural life. This interest the plaintiff in execution contended was a life estate, whereas the claimants insisted that, even if valid, it was a mere usufruct. It is provided by the Code, § 113-805, that "An unconditional gift of the entire income of property, or interest accruing from a fund, shall be construed into a gift of the property or fund, unless the provisions of the will require a more limited meaning." In Thomas v. Owens, 131 Ga. 248, 255 ( 62 S.E. 218), it was held that a gift under a will of the income from property for life was the equivalent of a life estate. A similar ruling was made in Sanders v. First Nat. Bank of Atlanta, 189 Ga. 450, 452 ( 6 S.E.2d 294), and Gilmore v. Gilmore, 197 Ga. 303, 311 (3) ( 29 S.E.2d 74). By analogy and on principle it should be held, and we so hold, that such a reservation in a deed creates a life estate. Being a life estate it is subject to levy and sale under an execution against the life tenant. North Georgia Fertilizer Co. v. Leming, 138 Ga. 775 (2) ( 76 S.E. 95); Armour Fertilizer Works v. Lacy, 146 Ga. 196 (1) ( 91 S.E. 12).
But the claimants, who are plaintiffs in error here, assert that since the reservation clause follows the granting clause and is, as they conceive, repugnant thereto, it must yield and is rendered impotent. Whether or not it be repugnant, and although it was the old rule that of two utterly inconsistent clauses in a deed the former would prevail, yet since the adoption of the first Code the strictness of the old rule has been modified, and substance, rather than technical nicety in the location of clauses in a deed, is controlling, the intention of the parties being now the cardinal rule of construction. Cobb v. Wrightsville c. R. Co., 129 Ga. 377, 379 ( 58 S.E. 862); Banks v. Morgan, 163 Ga. 468, 470 ( 136 S.E. 434). As stated in Keith v. Chastain, 157 Ga. 1 ( 121 S.E. 233), Aycock v. Williams, 185 Ga. 585, 590 ( 196 S.E. 54), and Guess v. Morgan, 196 Ga. 265, 269 ( 26 S.E.2d 124), "In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. If that intention is plain from the language of the deed as a whole, and the intention contravenes no rule of law, it should be given effect regardless of mere literal repugnancies in different clauses of the conveyance." See also Huie v. McDaniel, 105 Ga. 319 ( 31 S.E. 189); Simpson v. Brown, 162 Ga. 529 ( 134 S.E. 161, 47 A.L.R. 865). The intention may be ascertained by a consideration of the surrounding facts in connection with the recitals of the deed. Stewart v. Latimer, 197 Ga. 735, 743 ( 30 S.E.2d 633). The intention to reserve a life estate may be shown by remaining in possession of land after executing a deed of conveyance with a reservation like that here employed. Rollins v. Davis, 96 Ga. 107, 110 ( 23 S.E. 392). When, therefore, we consider that, as stipulated by the parties, the grantor has remained in possession of the lands, undisturbed by the grantees, since the date of the deed, and that, as held in Grant v. Haymes and Mendenhall v. Holtzclaw, supra, it is competent for a grantor to convey the fee to another and reserve some right to himself in the land, certainly it can not be said that the court was not authorized to find from the deed and surrounding circumstances that the grantor intended to reserve for herself a life estate and enjoy the possession and fruits of the land, after which it should be held by the grantees in fee simple. The grantees, of course, though not signatories to the deed, are, in accepting it, bound by its terms. The court did not err in ordering the execution to proceed.
Judgment affirmed. All the Justices concur.