Brown v. Mathis, 15669

• Decision Date: 07 January 1947
• Docket Number: No. 15669,15669
• Court: Georgia Supreme Court
• Parties: BROWN et al. v. MATHIS.

41 S.E.2d 137

BROWN et al.
v.
MATHIS.

No. 15669

Supreme Court of Georgia

Jan. 7, 1947.

.

.

[41 S.E.2d 138]Syllabus by the Court.

1. The petition for a declaratory judgment under the act of 1945 (Ga.L. 1945, p. 137), alleging that there existed an actual controversy, in that the petitioner claimed a fee-simple title as remote grantee under a deed executed January 29, 1914, and that the defendants, as remote grantees under a quitclaim deed executed October 10, 1936, by the same common grantor, and by virtue of a clause in the deed executed January 29, 1914, reserving a perpetual right to remove sand from the land conveyed, for which the grantee and his successors were to be paid 10 cents per car, claimed title to the sand, the petition praying that the reservation clause be declared void as violative of the rule against perpetuities, --was not subject to demurrer upon the ground that a proper case was not made under the statute or that the superior court of Taylor County, where the defendants resided and the suit was brought, was without jurisdiction because the land lies in Talbot County.

2. The reservation clause above referred to was a perpetual option to buy the sand at 10 cents per car, and was void because violative of the rule against perpetuities.

WYATT, J, dissenting.

Error from Superior Court, Taylor County; T. Hicks Fort, Judge.

Suit by J. E. Mathis against R. L. Brown and others for judgment declaring that a clause in a deed reserving a perpetual right to remove sand from land was void. To review an adverse judgment, defendants bring error.

Affirmed.

J. E. Mathis brought suit in Taylor Superior Court against W. M., J. H, and R. L. Brown under the Declaratory Judgment Act, Ga.L.1945, p. 137. The petition in substance alleged that the petitioner was the owner of a described tract of land containing 201% acres on lot No. 105 in the 16th district of Talbot County, Georgia, being the grantee in the last deed of a chain of title originating in a deed from Kirkpatrick Sand & Cement Company to J. C. Miller, dated January 29, 1914, and recorded July 10, 1926; and that the defendants claimed title to all of the sand on the described land by virtue of their being the grantees in the last deed in a chain of title originating in a quitclaim deed from Kirkpatrick Sand & Cement Company to R. L. Brown dated October 2, 1936, and recorded October 5, 1936. Thus all parties to this action claim under Kirkpatrick Sand & Cement Company as a common grantor, and the defendants contend that their title to the sand is valid because of a reservation clause in the above deed from the common grantor to J. C. Miller, which reservation follows immediately after the description of the land and is as follows: "Except the Kirkpatrick Sand & Cement Company reserves to itself, its successors and assigns, the right to mine and take from said land all sand together with the necessary rights of going upon said land to secure same, prepare same for market, and to load same upon cars, to place roads, or side tracks thereon, and in the event it does take said sand, it is to pay J. C. Miller, his heirs, executors, or assigns, ten cents per car for all cars of sand secured from said premises." The petition alleges that the clause attempting to reserve the right to the sand is void and ineffective for the reason that it is an option with no time limit fixed for its performance and violates the rule against perpetuities, that it is unilateral in that it obligates the grantee and his successors to sell the sand without imposing any obliga-

[41 S.E.2d 139]

tion upon the grantor and its successors to buy or pay for the same, that if it ever had validity it is now void for the reason that 32 years have expired, and the option has not been exercised within a reasonable time as required by law, and for the further reason that the petitioner and his predecessors in title have owned and possessed the land under deeds purporting to convey to them title in fee simple without the reservation for a period of more than seven years. An abstract of title of both the petitioner and the defendants is attached to the petition, and it is alleged that there exists an actual controversy between the petitioner and the defendants as to their respective nights under the deed containing the reservation from the common grantor, that the claim of the defendants and their telling the public generally that they owned the sand rights are hindering and hampering the petitioner in the use of said land, that the reservation clause is a cloud upon the petitioner's title and interferes with his selling, leasing, or utilizing the land, in that it prevents the petitioner from making any trade or contract relating to the land or the sand thereon. The prayer is that the reservation in the deed from the common grantor dated January 29, 1914, be declared null and void ab initio, and if this prayer is not granted that the reservation be declared no longer effective because of the unreasonable delay in exercising the option contained therein; that the reservation be cancelled and declared non-operative and of no effect; that the petitioner be declared to have a fee-simple title to...