Franke v. Berkner

• Decision Date: 30 September 1881
• Citation: 67 Ga. 264
• Parties: Franke . vs. Berkner et al.
• Court: Georgia Supreme Court

67 Ga. 264

Franke . vs. Berkner et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Estates. Title. Trusts. Prescription. Statute of Limitations. Before Judge simmons. Bibb Superior Court. October Term, 1881.

Reported in the decision.

F. J. M. Daly, for plaintiff in error.

Lyon & Gresham, for defendant.

Speer, Justice.

John Berkner, being a married man with a family, including wife and children, and holding an estate in his own right, on the 14th of July, 1855, executed a deed in manner and form as follows:

"Georgia—Bibb county.

"This indenture made and entered into this the 14th day of July, 1S55, between John Berkner and his wife, Margaret Berkner, and Jacob Russell, witnesseth, that the said John Berkner, for the sum of ten dollars to him in hand paid, and for the natural love and affection which he has for his wife and children of her body by him lawfully begotten, have granted, bargained, sold, and by these presents do grant, bargain, tell and convey unto the said Jacob Russell, his heirs and assigns, all of the following property, to-wit: one hundred and thirty-seven acres of land lying on the Forsyth road, about four miles from Macon, adjoining the lands of Merritt, George Douglass, Henry S. Rogers, T. P. Stubbs, and others, now occupied by John Berkner; three negroes, Sam, a man about sixty years old, Mourning, a woman sixty years old, Esther, a woman about twenty-six years old; ten cows and seven calves, two horses, one mule, two feather beds and bedsteads; one barouche; to have and to hold said property and all rights of property to the said Jacob Russell, his heirs and assigns, forever upon the trusts following, to-wit: to the use of said John Berkner and his wife, Margaret Berkner, and the children of her body lawfully begotten by said John Berkner, to the exclusion of his and their children by any other marriage, during the natural--of said John and Margaret, and during the natural life of the survivors; at and from the death of said John and Margaret this trust to cease, and the property and increase thereof to be equally divided between their children, the issue of their marriage, to the exclusion of all others, and to said children forever; the grandchildren, in case the parents be dead, to take the place of their parents. In witness whereof the said parties have set their hands and seals. John Berkner,

Margaret Berkner,

Jacod Russell.

" Signed, sealed and delivered in presence of

Caleb Walden, Sr.,

Thos. P. Stubbs, Notary Public"

To recover nineteen acres of the premises conveyed under the foregoing deed, the defendants in error, as the children of John and Margaret Berkner, brought their action of ejectment, the last life tenant, John Berkner, having died about two years prior to said suit.

To this action plaintiff in error filed the plea of general issue, also a plea of title by prescription in himself, and third an equitable plea by way of defense, in which healleged " that plaintiffs claim the premises in dispute under deed heretofore set forth of date of 14th July, 1855, as remaindermen, and defendant alleges the same was made under the following circumstances: That John Berkner visited Germany in 1854, and on his return brought with him a niece, with whom he became criminally intimate, which resulted in her pregnancy and when the same became known to his wife, Margaret, she being of strong mind and sharp tongue, was continually reveling her husband, and by her violent threats and harangues frequently forcing her husband to retire from the house; and finally yielding to the importunities of his wife, so that neither the niece or her child should have claim upon his property, he, acting under moral duress executed the deed under-which plaintiffs claim title, which was made to appease the anger of his wife, without any intention of passing an absolute estate. Shortly after the niece was delivered of a child, and she before a magistrate swore the same to John Berkner, which caused a divorce suit between Berkner and wife and which resulted, by the interposition of friends, in another conveyance of said property to his family by John Berkner. except the nine teen acres sued for, which he reserved to himself absolutely. That several years after this, Berkner sold the nineteen acres to Ward in 1861 and subsequently it was bought by defendant at commissioner\'s sale, under a decree in chancery and he has held the same since under color of title peaceably for more than seven years."

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