Johnson v. Flanders

• Decision Date: 06 October 1955
• Docket Number: No. 1,35888,Nos. 35884,s. 35884,1
• Parties: Raby JOHNSON et al. v. Mamie H. FLANDERS (two cases)
• Court: Georgia Court of Appeals

Page 829

89 S.E.2d 829

92 Ga.App. 697

Raby JOHNSON et al. v. Mamie H. FLANDERS (two cases).

Nos. 35884, 35888.

Court of Appeals of Georgia, Division No. 1.

Oct. 6, 1955.

Syllabus by the Court.

For the reasons assigned in the opinion the court did not err in striking certain paragraphs of the defendant's answer, setting up that the applicant did not have an undivided interest in the lands she sought to have partitioned in proceedings brought under Code Ch. 85-15.

A mother executed and delivered separate deeds to each of her three children, conveying a one-third undivided interest in the same lands, and by the terms of each deed reserved a life estate to herself. The deeds each contained two restrictions: the first was that, if the grantee undertook to sell or encumber the property during the grantor's life, the deed would become null and void; the second, that the grantee hold the lands during his or her 'lifetime', without selling, transferring, assigning, or encumbering it without the consent of the grantor's other two children, named grantees in similar deeds. There was no penalty attached to the restriction. The first restriction contained in the deed was not violated, none of the vendors making any disposition of the property during the grantor's life.

One of the grantees, after the mother's death, devised his estate in the lands to his wife. The wife, upon the death of her husband, instituted partition proceedings to have the lands divided as provided in Code Ch. 85-15. The mother's two living children filed an answer, and in certain paragraphs thereof interposed the defense that the husband violated the condition of the mother's deed to the applicant's husband, quoted above; and that for this reason no title to the husband's estate in the lands vested in the applicant under her husband's will. The court struck the paragraphs referred to, and later entered a judgment in favor of the applicant. To the ruling and judgment the defendants excepted.

A. R. Ross, Eastman, for plaintiff in error.

Will Ed Smith, Eastman, for defendant in error.

QUILLIAN, Judge.

1. The deeds having been executed and delivered by the grantor during her life, conveying a present estate to the grantees named in them, were not testamentary in their nature, Mays v. Fletcher, 137 Ga. 27(1), 72 S.E. 408; Shelton v. Edenfield, 148 Ga. 128, 96 S.E. 3, and conveyed to each of the children a vested remainder interest in lands.

2. The condition or provision contained in...