Beauchamp v. Fitzpatrick

• Decision Date: 13 October 1909
• Citation: 65 S.E. 884,133 Ga. 412
• Parties: BEAUCHAMP. v. FITZPATRICK et al.
• Court: Georgia Supreme Court

65 S.E. 884

133 Ga. 412

BEAUCHAMP.

v.FITZPATRICK et al.

Supreme Court of Georgia.

Oct. 13, 1909.

1. Deeds (§ 105^*)—Construction—Grantees.

A deed recited as its consideration the love and affection which the grantor had for his daughter and the children of her body by her husband (naming him) and ten dollars in hand paid, and conveyed certain land to a trustee for the daughter and the children of her body by such husband, "all of the county of Brooks and state aforesaid, * * * for the sole and separate use of the said Mary M. [the daughter] and her children as aforesaid, their heirs and assigns." A person, alleging that he was the husband and sole heir of one of the children of the daughter of the grantor and that his wife had died, filed a petition for partition of the land, alleging that the children of the grantor's daughter and her husband were certain named persons, that one who was named had acquired by purchase the interest of certain other "heirs, " and that the petitioner and certain of the children who were named were tenants in common of the land. It was nowhere alleged that the daughter of the grantor was dead; nor was it alleged what children were in life at the time when the conveyance took effect, so as to fall within the description of "children of her body" then in esse; nor was it alleged that the wife of the petitioner was then in life. Held: (1) That only such children as were in esse when the conveyance took effect acquired any interest under it. (2) As the petition failed to show that the wife of the petitioner, under whom he claimed, was a child in esse when the conveyance was executed, so as to convey any interest to her, which could pass to him, or to show what children were then in esse, or whether their mother was alive or dead, so as to show what interest, if any, the petitioner had, the petition was properly dismissed on demurrer.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 278; Dec. Dig. § 105.*]

2. Limitation of Actions (§ 180*)—Recovery of Realty.

An allegation in a petition for partition that the co-tenants of the applicant had received the rents, issues, and profits of the land for more than 20 years and had not paid any part of them to him, but which showed neither adverse possession nor notice to the petitioner, did not render the application for partition demurrable, on the ground that it did not show that it was commenced within the period limited by law for the recovery of realty.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. § 673; Dec. Dig. § 180.*] (Syllabus by the Court.)

Error from Superior Court, Brooks County; R. G. Mitchell, Judge.

Action by B. F. Beauchamp against I. H. Fitzpatrick and others....