Holder v. American Investment & Loan Co.

• Decision Date: 23 July 1894
• Citation: 21 S.E. 897,94 Ga. 640
• Parties: HOLDER v. AMERICAN INVESTMENT & LOAN CO.
• Court: Georgia Supreme Court

21 S.E. 897

94 Ga. 640

HOLDER v. AMERICAN INVESTMENT & LOAN CO.

Supreme Court of Georgia

July 23, 1894

Syllabus by the Court.

1. The evidence showing that the land in Vineville district, which the constable intended to seize by virtue of a tax fi. fa was a lot consisting of two acres adjoining several adjacent owners, one of whom was Ross, alias Hollingsworth, a description in the entry of levy, and in the conveyance subsequently made by the sheriff, was too vague and uncertain, the whole description being as follows: "One acre of land, more or less, in the Vineville district adjoining the property of W. T. Hollingsworth and Ben Ross," -- and the land of Ross, alias Hollingsworth being so situated as to make the description equally as applicable to various other acres as it would be to the premises which the officer intended to seize.

2. Where the owner in fee of one undivided half of certain premises is the executrix of the deceased owner of the other half, and besides being tenant for life, under his will relatively to that half, is empowered by the will to sell in fee, as executrix, for reinvestment, a conveyance made by her of the whole premises in fee to a purchaser, which makes no mention of her executorship, and does not refer to the will, or to any power derived therefrom, but purports to be a conveyance made in her own right, as sole owner, passes no title to the purchaser, as against the rights of remainder-men under the will. Such conveyance is effective to pass her own undivided interest, together with her life estate, but no more.

3. A devise by a surviving tenant in common, her deceased husband having been her cotenant, in which she gives her half interest in a tract of land, describing it as the tract on which she now lives, "said half interest having been conveyed to me by deed made jointly to myself and my deceased husband *** by E. H. Bloodworth, the other half interest in said lands having been conveyed to my said husband," imports on its face a gift of all the interest which she derived from Bloodworth by the deed referred to, including her half of the entire tract, as described in that deed. In this respect there is no ambiguity on the face of the devise, and a latent ambiguity, raised by extrinsic evidence showing that previously to the execution of the will the testatrix had sold and conveyed a small portion of the tract to another person, would be no reason for not applying in favor of a bona fide purchaser, who purchased without notice of such sale and conveyance, the statutes giving priority to a junior recorded deed over a senior unrecorded deed; and that statute applies where the senior deed was made by the testatrix, and the junior by her devisee.

4. There was no error affecting the substantial merits of the controversy, and, under the facts, no legal result was possible, except the one which was reached by directing a verdict in favor of the plaintiff below.

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

Action by the American Investment & Loan Company of Macon, Ga., against H. S. Holder. Judgment for plaintiff, and defendant brings error. Affirmed.

Where there is no ambiguity on the face of the devise, a latent ambiguity, raised by extrinsic evidence, showing that previous to the execution of the will testatrix had conveyed a small portion of the devised tract to another person, is no reason for not applying in favor of a bona fide purchaser of the whole tract from the devisee, without notice, the statutes giving priority to a junior recorded deed over a senior unrecorded deed.

The following is the official report:

The issue in this case was between the American Investment & Loan Company of Macon, Ga., and H. S. Holder, as to the title to two acres of land. The jury found for plaintiff, the investment and loan company, that the title to the two acres in question was perfect in plaintiff, and that the deeds and muniments of title offered in evidence to support defendant's title were void, and that the same be canceled. The following, among other things, appeared for plaintiff: In June, 1874, E. H. Bloodworth conveyed to Sarah E. and G. C. S. Johnson a tract of land, being 125 acres, more or less, in Bibb county, part of the Macon reserve, on the west side of the Ocmulgee river, and also 75 acres, another portion of the same reserve. By his last will, dated February 28, 1877, G. C. S. Johnson directed that his executrix (his wife, Sarah E. Johnson) should pay his debts, and for this purpose might sell any part or all of his estate, real and personal, if, in her discretion, it should become necessary or expedient. He made a number of bequests to children previously provided for, and bequeathed to his wife, for life, the residue of his estate, directing "that she have full and entire control of the same for and during her natural life, with power to sell any part of or the whole of the same, and to reinvest the proceeds in other like property." He further directed that at the death of his wife the property given to her for life be equally divided between his daughters, Minnie and Callie, and his stepdaughter, Hattie Tinsley, and that, in the event either of them die without a natural heir, her share should be equally divided between the survivors. Sarah E. Johnson, by will dated February 12, 1883, devised to her three children, T. D. Tinsley, Hattie Tinsley, and Minnie Johnson, her half interest in the tract of land deeded to her and her husband by Bloodworth. She appointed Lofton executor. On March 3, 1884, a tax fi. fa. for taxes due for 1883 by Mrs. Johnson was levied on the land, described in the sheriff's deed made under the levy as "all that lot of land situated, lying, and being in the Howard district of said county, known in said...