Burkhalter v. De Loach

• Decision Date: 20 October 1930
• Docket Number: 7763.
• Parties: BURKHALTER et al. v. DE LOACH.
• Court: Georgia Supreme Court

155 S.E. 513

171 Ga. 384

BURKHALTER et al. v. DE LOACH.

No. 7763.

Supreme Court of Georgia

October 20, 1930

Syllabus by Editorial Staff.

Deed of remainder interest to granddaughter, providing granddaughter was to continue to care for grantor during grantor's life, created covenant binding granddaughter to continue to live with grantor and care for her.

Breach of covenant which is sole consideration for absolute deed coupled with covenantor's insolvency, authorizes cancellation, though deed contains no condition for determining estate.

Forfeiture of title by grantee's breach of covenant to care for grantor held waived by grantor's consent to grantee's departure to avoid bodily harm.

Grandmother executed deed to property to granddaughter on condition that granddaughter live with and care for grandmother as long as grandmother lives. After execution of deed, granddaughter was severely whipped to drive her from home of grandmother, but subsequently returned. Granddaughter was again threatened with bodily violence, and was forced to leave grandmother's home. Grandmother consented to granddaughter's leaving, and furnished means for defraying her expenses.

Forfeiture from breach of covenant may be waived by circumstances as well as express language.

Where waiver extends to entire forfeiture, all benefit to be derived therefrom is gone.

Grantor's administrator could not claim forfeiture of deed by grantee's breach of covenant forming part of consideration, which breach was waived by grantor.

Deed in consideration of grantee's living with grantor and paying expenses of last illness and burial held not forfeited by grantee's failure to pay expenses.

Charge that grantees breach of condition indeed forfeited right to property, unless grantor impliedly waived condition held not erroneous for failure to define implied waiver.

Defendants desiring further instructions on implied waiver of forfeiture of deed should have made written request.

Charge to deny grantee recovery, if deed was not executed and delivered for consideration, held not erroneous as eliminating question of forfeiture which was otherwise submitted.

Ordinary against whom verdict was improperly granted, could be stricken from case by Supreme Court (Civ. Code 1910, § 6103(2); Pen. Code 1910, § 1095(2).

Error from Superior Court, Tattnall County; J. Saxton Daniel, Judge.

Action by Mannie De Loach against W. M. Burkhalter, administrator, and others. Judgment for plaintiff, and defendants bring error.

Affirmed, with directions.

W. T. Burkhalter, of Reidsville, for plaintiffs in error.

H. H. Elders, of Reidsville, for defendant in error.

Syllabus OPINION.

HINES J.

1. On April 30, 1925, Epsy McQueen, by her deed in consideration of the sum of $50 and of love and affection (with covenants hereafter stated), conveyed to Mannie De Loach, her granddaughter, a described tract of land, all her money, notes, and accounts, which she then owned or might own at the time of her death, and all her household and kitchen furniture then located in her house, one mule, and all her cattle and hogs upon the land conveyed, the grantor reserving to herself a life estate in all the property so conveyed, and providing that this conveyance "is made to the said Mannie De Loach because she is my granddaughter and I have reared her, and she is now living with me and taking care of me and is to continue to do so as long as I live." The deed thus created a covenant binding the granddaughter, who was living with, and taking care of, her grandmother at the date of the execution of the conveyance, to continue to live with and care for her grandmother so long as the grandmother lived. Lindsey v. Lindsey, 62 Ga. 546, 550; McCardle v. Kennedy, 92 Ga. 198, 17 S.E. 1001, 44 Am.St.Rep. 85. In case of a covenant which is the sole consideration of an absolute deed of conveyance, a breach thereof, coupled with insolvency of the covenantor, will authorize a decree of cancellation of such instrument, although the instrument contains no condition upon the happening of which the estate is to determine. Wood v. Owen, 133 Ga. 751(3), 66 S.E. 951; Wyatt v. Nailer, 153 Ga. 72(4), 111 S.E. 419; Fletcher v. Fletcher, 158 Ga. 899, 124 S.E. 722.

2. After the execution of the deed just referred to, the granddaughter was, in the latter part of the year 1925 severely whipped by persons whose identity is not disclosed in the record, inferentially for the purpose of driving her from the home of her grandmother. In fear of great bodily harm, the granddaughter left the home of her grandmother. She afterwards returned in July, 1926, to live with and care for her grandmother. Within a week after her return a letter was found on the porch of the grandmother's home in which she was threatened with further bodily violence if she did not leave; in consequence of which, and under fear of further violence, she again left her grandmother's home. The grandmother in both instances consented for her to go, deeming this course to be best for the safety of her granddaughter, and furnishing her the means of defraying her expenses in going; and thereafter the grandmother expressed her wish and desire that the granddaughter should have her property, such wish and desire being expressed as late as the fall of 1928. The grandmother lived until February, 1929, and never sought to cancel or rescind the conveyance before her death. On evidence of the facts just recited, the jury was authorized to find that the grandmother had waived any forfeiture by the granddaughter of her title to the property conveyed, by reason of her failure to live with and care for her grandmother as long as the latter lived. Wood v. Owen, supra. Forfeiture resulting from the breach of a covenant may be waived, and a waiver will result from circumstances as well as express language to that effect. Where the waiver extends to the whole forfeiture, all benefit to be derived therefrom is gone. Moss v. Chappell, 126 Ga. 196, 205, 54 S.E. 968, 11 L.R.A. (N. S.) 398; Jones v. Williams, 132 Ga. 782(3), 64 S.E. 1081; City of Barnesville v. Stafford, 161 Ga. 588(4), 131 S.E. 487, 43 A.L.R. 1045. If the grandmother waived the forfeiture arising from the failure of the granddaughter to live with and...