Grant v. Haymes
| Decision Date | 22 June 1927 |
| Docket Number | 5756. |
| Citation | 138 S.E. 892,164 Ga. 371 |
| Parties | GRANT v. HAYMES. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where the owner of a described tract of land agreed to sell the same, and in pursuance of the contract of sale, on January 23, 1909, executed to the buyer his bond for title, in which there was this provision: "There is a sand bank on the property to be conveyed, said sand bank being on the west side of the road, extending from Chattanooga to Blowing Springs, and the right is reserved to remove all of the said sand in said bank up to the north boundary line of the property to be conveyed, and as far west as sand may extend together with the right to remove timber growing over said sand bank, so as to the better enable him to get the sand;" and where, on January 23, 1914, the executrix and sole legatee of the grantor, pursuant to his bond, conveyed said land to the grantee, with the same reservation of said sand as that contained in the bond for title, such reservation was more than a more license to the grantor to remove said sand, but was a reservation of the title to the sand in the grantor.
It is competent for the owner of land to convey the fee therein to another and reserve the right to the sand in a sand bank thereon.
(a) Strictly speaking, a reservation is a clause in a deed or other instrument, whereby the grantor reserves to himself some new thing issuing out of the thing granted and not in esse before, and differs from an exception, which is always a part of the thing granted.
(b) But the terms "exception" and "reservation" are often used in deeds indiscriminately, and sometimes what purports to be a reservation has the force of an exception. In cases where the intention is the controlling consideration, the distinction of the common law between reservation and exception is not material.
(c) Under the bond for title referred to in the first headnote the vendor agreed to sell to the vendee the land therein described, but reserved to himself the title to the sand in the sand bank thereon, and by the conveyance by the executor of the maker of the bond for title, in pursuance thereof title to said sand was reserved in the vendor or his estate.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Exception (in Deed); Reservation.]
The right or title to the sand did not terminate with the death of the grantor.
(a) The reservation of the sand was not a mere license which was revoked by the death of the grantor.
(b) While by the common law this reservation would only create a life estate in the sand in the grantor, because of lack of words of inheritance, under our statute, which dispenses with words of inheritance and which declares that every conveyance shall be construed to convey the fee, this reservation, even if given its strict common-law meaning, reserved to the grantor a fee in this sand; and if the term "reservation" is treated as an exception, the effect of such reservation was to reserve in the grantor the fee in the sand, which would pass to his heirs in case of his intestacy, or to his devisee thereof when he died testate.
Under the language in which this reservation is couched, the grantor, his heirs, or devisees did not have unlimited time in which to reserve this sand, but the same should be removed in a reasonable time, and upon the failure of the grantor, or those claiming under him, to remove it within a reasonable time, the right or title to the sand would be divested.
(a) What is a reasonable time in which this sand should be removed is a question of fact, under all the circumstances to be determined by a jury. Except in extreme cases, where the period is very short or very long, this court cannot determine, as a matter of law, whether the reasonable time in which the grantor or those claiming under him should remove this sand has or has not expired.
(b) While considerable time elapsed between the execution of the bond for title in 1909 and the execution of the executor's deed in 1914 and the filing of the petition in this case in 1924, this court cannot say, as a matter of law, that a reasonable time for the removal of this sand had expired before the institution of this suit, but it is a question of fact for determination by a jury.
Plaintiff alleges in her petition that she has title to this sand as sole devisee under the will of the grantor. The demurrer admits this to be true. So it cannot be said that the petition fails to show title in the petitioner. In an equitable complaint for land or some interest therein, the plaintiff is not required to set out in her petition the muniments of title under which she claims title, nor to attach copies thereof to her petition.
The court below erred in sustaining the demurrer to the petition and in dismissing the same.
Error from Superior Court, Walker County; James Maddox, Judge.
Petition by E. P. Grant against N. B. Haymes. Petition was dismissed on demurrer, and plaintiff brings error. Reversed.
Elizabeth Post Grant filed her petition against N. B. Haymes, in which she made these allegations. Haymes is in possession of a described tract of land, in Walker county, this state. Petitioner claims title to all of the sand on a sand bank on the west side of the road extending from Chattanooga to Blowing Springs, together with the right of ingress and egress over the described lands to remove said sand from said sand bank, up to the north boundary line of the property described, and as far west on said property as said sand may extend, together with the right to remove timber growing over said bank, so as to better enable the removal of said sand. Haymes refuses to deliver possession of said land to petitioner or to pay her the profit of the said sand bank. Haymes holds said described land under a contract of purchase from the husband of petitioner, who, on January 23, 1909, contracted to sell the same to him and issued to him on said date his bond for title thereto, which contained this provision:
"There is a sand bank on the property to be conveyed, said sand bank being on the west side of the road extending from Chattanooga to Blowing Springs, and the right is reserved to remove all of the said sand in said bank up to the north boundary line of the property to be conveyed, and as far west as sand may extend, together with the right to remove timber growing over said sand bank, so as to the better enable him to get the sand."
Said sand bank is a part of the described land, being located on parts of lots Nos. 3 and 4, in the ninth district and fourth section of said county. Pursuant to said bond for title, which will be produced on the hearing of this case, petitioner on January 23, 1914, as executor of and sole legatee under the will of her husband, made a deed to Haymes to the described tract of land, and in said deed made the same reservation of said sand bank as above set forth, describing the same as a part of the described land, located on the west side of the Chattanooga and Blowing Springs road, and being a part of lots Nos. 3 and 4 in said district and section, the acres through which sand goes petitioner cannot yet determine.
Until 1923 petitioner did not know that the defendant was claiming adversely to her and those under whom she holds. Said sand bank is the property of petitioner, and she is entitled to and should have the right of ingress and egress to said sand bank. Petitioner should recover and have possession of said premises described, but recently, and during the last year the defendant erected a locked gate, as described in the drawing attached to the petition and made a part thereof, and has forbidden her from entering upon the premises and getting the sand that belongs to her and from entering said premises at all, and has maintained the said gate, locking her out of said premises for more than 12 months, and refuses to deliver said premises to her or to pay her the profit thereof, and she is legally the owner of the same. The defendant is claiming under the same source of title as petitioner. Petitioner and her predecessors in title were in the open, notorious, peaceable, actual, and adverse possession of this tract of land, and other contiguous lands for more than 40 years before said lands were sold to the defendant. She has not aliened and released any rights to said bank, and is entitled to the same under the law. Since said bond for title was made her husband departed this life, leaving a will under which petitioner became the executor and sole legatee and owner in her right of all the lands or property left by her husband, who died May 26, 1912, and whose will was properly probated in the court of common pleas in Chattanooga, Tenn., on June 3, 1912. Copies of the proceedings to probate said will, together with copy of the will, will be produced on the trial of this case. Said sand is located on the highway in said county, is near Chattanooga, Tenn., is valuable, and petitioner is entitled to the same, and to have said sand withheld from her is materially damaging her. Said sand bank and gate aforesaid are on the west side of the road described, and are located on or about the north and south line running between lots 3 and 4 in said district and section, and are fairly accurately described in the drawing which is made a part of the petition. Petitioner prayed to recover the sand in said sand bank, together with the right to enter upon the described lands for the removal of said sand, and the right to remove timber from said sand bank, in order to enable the sand to be removed, that the defendant be required to permit plaintiff to enter upon said lands for the removal of said sand, and to be enjoined from interfering with her in the removal of said sand by...
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