Henderson v. Sawyer

• Decision Date: 13 July 1896
• Citation: 25 S.E. 312,99 Ga. 234
• Parties: HENDERSON et al. v. SAWYER.
• Court: Georgia Supreme Court

25 S.E. 312

99 Ga. 234

HENDERSON et al. v. SAWYER.

Supreme Court of Georgia

July 13, 1896

Syllabus by the Court.

1. Since the adoption of the Code, a mere repugnance in words will not authorize a court to hold that there is a real repugnance in a deed, and consequently to annul the latter of two inconsistent clauses therein, when the actual intention of the maker, viewing the instrument as a whole, can be arrived at without serious difficulty. Code, § 2755; Thurmond v. Thurmond, 14 S.E. 198, 88 Ga. 182; Bray v. McGinty, 21 S.E. 284, 94 Ga. 192, and cases cited; Rollins v. Davis, 23 S.E. 392, 96 Ga. 107.

2. Accordingly, where premises described in a deed were thereby "granted, bargained, and sold" to a named person "her heirs and assigns," to have and to hold "unto her *** and the heirs she may have by" one Baker, her husband, "her Baker heirs," "to them and their own proper use, benefit, and behoof forever in fee simple," the effect of such deed was to convey the title to the grantee named, and her three children in life when it was executed, as tenants in common.

Error from superior court, Twiggs county; C. C. Smith, Judge.

Action by Victoria Henderson and others against Amanda Sawyer. From an order granting a nonsuit, plaintiffs bring error. Reversed.

The following is the official report:

The three children of Mrs. Baker brought their action for the recovery of an undivided three-fourths interest in certain land. It was admitted that both plaintiffs and defendant claimed under a deed from one Bryant to Mrs. Baker, bearing date October 25, 1876, whereby, in consideration of $2,000 the grantor "hath granted, bargained, sold, and by these presents doth grant, bargain, sell, and convey, unto the said Mary A. M. Baker, her heirs and assigns," the land in question, "to have and to hold said parcels of land unto her, the said Mary A. M. Baker, and the heirs that she may have by Solomon Baker (her Baker heirs), and assigns, with all the rights and appurtenances belonging, to them and their own proper use, benefit, and behoof forever, in fee simple." Mrs. Baker is yet living, and the plaintiffs are the only children of her and Solomon Baker. They were born in 1860, 1865, and 1870. The court granted a nonsuit upon the ground that plaintiffs did not take anything under the deed; the words in the habendum being inconsistent with the words granting the premises to Mrs. Baker, and therefore void.

L. D....