Huie v. McDaniel

• Decision Date: 26 July 1898
• Citation: 31 S.E. 189,105 Ga. 319
• Parties: HUIE v. McDANIEL et al.
• Court: Georgia Supreme Court

31 S.E. 189

105 Ga. 319

HUIE v. McDANIEL et al.

Supreme Court of Georgia

July 26, 1898

Syllabus by the Court.

1. The cardinal rule of construction of deeds, as well as other contracts, is to ascertain the intention of the parties. If that intention be clear from the deed and circumstances of the transaction, and contravenes no rule of law, it should be enforced, notwithstanding there might be mere literal repugnancies in different clauses of the conveyance. It follows from the above that where a father, in the granting clause of a deed, conveys to his daughter, "her heirs and assigns," a certain tract of land, and afterwards in the habendum clause, the conveyance is enlarged by words to have and to hold said land and its appurtenances unto the daughter and her two children (naming them), "made equal as heirs," the real intention of the parties to the conveyance was to pass an estate in common to the daughter and the other two named persons. An action of ejectment for the recovery of a portion of the land embraced in the deed in favor of these three owners as plaintiffs can be maintained.

2. This court cannot consider any ground in the motion for a new trial complaining of errors in the court below in admitting or rejecting testimony, when the motion fails to set forth what was the particular testimony thus admitted or rejected.

3. There was sufficient evidence to sustain the verdict.

Error from superior court, Carroll county; S.W. Harris, Judge.

Ejectment by W. G. McDaniel, administrator, and others, against D. B Huie. There was a judgment for plaintiffs, and defendant brings error. Affirmed.

W Capers Hodnett, for plaintiff in error.

W. F. Brown, S. Holderness, C. P. Gordon, and Adamson & Jackson, for defendants in error.

LEWIS J.

Ejectment was brought against Huie for a certain part of lot No. 142, in the Ninth district of Carroll county. Two demises were laid,--one in Mrs. M. E. McDaniel, and the other in Mrs. M. E. and Annie and Mattie McDaniel. J. B. McDaniel, the common grantor of the parties, and who formerly owned the whole of lot 142, made a deed in November, 1874, conveying the south half of the lot to himself, as guardian for certain minors, named Cock, and subsequently, under an order of court, conveyed it, as guardian of these minors, to Samuel A. Brown, who in 1883 executed a deed reciting that, in consideration "of the natural affection of a father to his child, I, S. A. Brown, of the county of Heard, do hereby give and bequeath to daughter M. E. McDaniel, of the county of Carroll, her heirs and assigns, a tract or parcel of land [describing it]." "To have and to hold said land and its appurtenances, unto said M. E. McDaniel, M. H. McDaniel, A. E. McDaniel, made equal as heirs, her heirs, executors, administrators, and assigns, in fee simple." Then follows: "I warrant the title to said land against the lawful claims of all persons." M. H. and A. E. McDaniel are daughters of M. E. McDaniel. On May 15, 1875, J. B. McDaniel conveyed to the defendant a tract described in the deed as "fifty acres square in the north-west corner of" lot 142. The plaintiffs contended that Hule was in possession of a part of their land in the south half of lot 142. Defendant contended that the land in question was not a part of the south half, but was north of a line established by J. B. McDaniel in 1872 as the boundary line between the north half and the south half of the lot, and that he (Huie) was in possession of the strip of land in dispute before the deed to the south half was made by McDaniel to himself as guardian, and had ever since remained in possession, and had a good prescriptive title to it. The jury rendered a verdict in favor of the plaintiffs for the premises in dispute, and $140 "for damage and rents." The defendant's motion for a new trial was overruled, and he excepted.

1. One of the grounds in the motion for a new trial is "Because the court erred in holding, when the question was raised and passed upon, that the deed from Samuel A. Brown to Mrs. M. E. McDaniel conveyed such title to all of the plaintiffs as would authorize them to recover in this case." We do not think there is any serious difficulty in arriving at the real intention of the grantor, Brown, from the words above quoted from his deed. The granting clause of the deed conveys a fee-simple estate to his daughter Mrs. M. E. McDaniel; and the habendum clause manifestly intended to include in the conveyance her daughters, M. H. and A. E. McDaniel. The expression, "made equal as heirs," can have but one reasonable construction; and...