Coleman v. Thomasson

• Decision Date: 28 February 1925
• Docket Number: 4325.
• Citation: 127 S.E. 129,160 Ga. 81
• Parties: COLEMAN ET AL. v. THOMASSON ET AL.
• Court: Georgia Supreme Court

127 S.E. 129

160 Ga. 81

COLEMAN ET AL. v. THOMASSON ET AL.

No. 4325.

Supreme Court of Georgia

February 28, 1925

Error from Superior Court, Muscogee County; Geo. P. Munro, Judge.

Action by S. T. Thomasson and others against Elizabeth Coleman and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Hines J., dissenting in part.

Geo. C Palmer, of Columbus, and L. E. Heath, of Douglas, for plaintiffs in error.

J. T Thomasson, of La Grange, and McCutchen, Bowden & Gaggstatter, of Columbus, for defendants in error.

ATKINSON J.

B. F. Coleman, Sr., died on March 1, 1888, leaving a will which was duly probated. Item 5 of the will provided:

"I give, bequeath, and devise unto my son, John M. Coleman, for and during the term of his natural life (provided he appears in person and claims the same within five years after my death; if he does not appear and claim the same in person within five years aforesaid, then this bequest is void and the property hereby bequeathed reverts to my estate, to be disposed of as hereinafter provided in item eight of this will). * * * [Then follows a description of a lot in the city of Columbus.] If my son, John, dies leaving child or children (provided he appears in person in the five years after my death as aforesaid and claims the same), then the above-described property at his death goes to them in fee simple. If he does not appear, then this bequest is void as to him and his child or children, and the same reverts to my estate. My executors hereinafter named are to take charge of said lot as a part of my estate at my death, and to collect the rents of same for the use of my estate until the said John M. appears (provided he appears in the five years aforesaid), and the said John M. is not entitled to or to have the rents of said property until he appears in person and claims the property, and he, in that event, is only entitled to the rents subsequent to his appearing and claiming the property within said five years."

Item 8 of the will provided:

"The remainder of my estate real and personal, of whatever kind or character, is hereby given, bequeathed, and devised to my son, B. F. Coleman, Jr., one half, and my grandsons, William F., Charles T. and Hughlett Coleman, sons of my son Charles (deceased), the other half. * * *"

On April 24, 1923, certain persons as successors in title to the persons named in item 8 of the will instituted an equitable action, seeking a decree declaring that John M. Coleman is dead and that his estate in the property has terminated, and that the fee-simple title is vested in the petitioners, and cancellation, as a cloud upon title, of a deed executed by the sheriff in pursuance of a sale of the property for taxes. The allegations of the petition were in substance as stated above, and as follows: John M. Coleman appeared in person during the five years, and became vested with a life estate in the property. In 1912, being then a resident of the city of Columbus, he left that city "for parts unknown," leaving no address with his relatives, and from that date to the present time--about 11 years--he has not been heard from by his relatives or persons most interested in him, further than such persons hearing that he was dead. "Petitioners charge further that the said John M. Coleman is dead and his life estate in said property has terminated." The petition did not allege that John M. Coleman died without "leaving child or children." Further allegations of the petition were that the property was sold for taxes on December 7, 1915, by the marshal of the city of Columbus, and purchased by a named person as agent of one of the petitioners, and a deed was regularly executed to that petitioner; that on or about September 5, 1916, the property was sold at sheriff's sale for taxes, as property "of the estate" of John M. Coleman, and was again bid in for the same petitioner by the same agent who had acted for her in purchasing at the marshal's sale; that the sheriff executed a deed; "that, by and through an error in the execution of said deed," the deed was made to the agent instead of the petitioner above referred to, and that the deed was recorded on August 19, 1921, after the death of the agent; that the petitioner took possession of the property immediately after the purchase at the sheriff's sale, and held it exclusively in her own right from that time up to the date of the suit; that the said agent who bid off the property was not at any time in possession of the property, and did not ever have any right title, or interest therein; and that the agent died, leaving named persons as his only heirs at law. The named heirs were the only persons named as defendants in the original petition. The...