Burnett v. Summerlin

• Decision Date: 04 April 1900
• Citation: 35 S.E. 655,110 Ga. 349
• Parties: BURNETT v. SUMMERLIN et al.
• Court: Georgia Supreme Court

35 S.E. 655

110 Ga. 349

BURNETT

v.SUMMERLIN et al.

Supreme Court of Georgia.

April 4, 1900.

DEED—ESTATE CONVEYED—GUARDIAN AD LITEM—SUIT AGAINST INFANT.

1. A voluntary deed from a father to his son "and his children" and their heirs and assigns, conveying a tract of land, "for the use and benefit of [the son] during his natural lifetime, and to his children at his death, but in no event to be subject to the debts, contracts, or liabilities of [the son], " with habendum clause to the son "and his children, their heirs, executors, administrators, and assigns, in fee simple, " conveyed to the son a life estate, with remainder to his children.

2. In a suit respecting the title to this land, to which a child born to the son after the execution and delivery of the deed was made a party, and process prayed against her and served upon her, she should be represented by a guardian ad litem. Where this is not done, an award against her is not binding upon her, and should not have been made the judgment of the court

3. There was no error in any of the rulings of which complaint is made.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Suit by S. A. Summerlin and others against G. W. E. Burnett. Decree for plaintiffs, and defendant brings error. Reversed.

M. G. Bayne, for plaintiff in error.

Hardeman & Moore, for defendants in error.

SIMMONS, C. J. In 18S1, Samuel B. Burnett made to his son, George W. E. Burnett and the children of the latter, a deed to a certain tract of land in Bibb county, Ga. The deed was voluntary. Its material parts were as follows: "By these presents does grant, bargain, sell, alien, convey, and confirm unto the said George W. E. Burnett and his children, and their heirs and assigns, all that lot or parcel of land [describing it]; for the use and benefit of the said George W. E. Burnett during his natural lifetime, and to his chil dren at his death, but in no event to he subject to the debts, contracts, or liabilities of the said George W. E. Burnett; to have and to hold the said above granted and described property * * * to the only proper use, benefit, and behoof of them, the said George W. E. Burnett and his children, their heirs, executors, administrators, and assigns, in fee simple." It concludes with a warranty clause. At the time of the execution of this deed the son had one child living. Subsequently, another child was born to him. At the time of the execution of the deed, the grantor, by another deed, conveyed to his daughter, Mrs. Summerlin, an adjoining tract of land. A dispute arose between Mrs. Summerlin and her brother, George W. E. Burnett, in regard to the boundary between the two tracts. Mrs. Summerlin filed an equitable petition, alleging that there was a mistake in the deeds, in that the numbers of the lots were incorrectly set forth. She prayed a reformation of the deeds by a correction of the land lot numbers. She also alleged that George W. E. Burnett was in possession of a part of the land given to her by their father, and of that part she prayed that she be put in possession. She made George, his two children, and the grantor's administrator parties to the suit praying in her petition that the court should appoint a guardian ad litem for the younger child, a minor, in the event It should appear that such child had any interest in the litigation. By consent of parties, the...