Keith v. Chastain

• Decision Date: 11 December 1923
• Docket Number: (No. 3653.)
• Citation: 157 Ga. 1,121 S.E. 233
• Parties: KEITH et al. v. CHASTAIN et al.
• Court: Georgia Supreme Court

157 Ga. 1

121 S.E. 233

KEITH et al.

v.CHASTAIN et al.

(No. 3653.)

Supreme Court of Georgia.

Dec. 11, 1923.

Rehearing Denied Jan. 28, 1924.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Child— Children.]

Error from Superior Court, Forsyth County; D. W. Blair, Judge.

Proceeding between S. O. Keith and others and Claud Chastain and others. Judgment for the latter, and former brings error. Reversed.

The following is a copy of the material parts of the deed in question:

"This indenture, made this 22d day of December, 1875, between Samuel Stephens of the first part, and Andrew L. Keith and his wife, Eliza Ann H. Keith, of the second part, all of the county and state aforesaid, witnesseth: That for and in consideration of the sum of $2,500 to the said party of the first part paid the receipt whereof is hereby acknowledged, that is, $150 paid by A. L. Keith and $2,350 given to them, the said parties of the second part, as the children of the said party of the first part, hath bargained, sold, and conveyed unto the said parties of the second part all of the following tracts of land, except all mines and minerals and full mining privileges, namely: [Describing seven lots containing 200 acres of land in the fourteenth district and first section of Forsyth county.] To have and to hold to them and to their children and assigns, to their own proper use, benefit, and behoof forever in fee simple; and the said party of the first part himself, his heirs, and assigns, unto the said parties of the second part will warrant the right and title and forever defend the same against themselves and against the lawful claims of all other persons whatever."

The construction of the deed was the one issue for determination. It was agreed that whatever interest Mrs. Eliza Ann H. Keith had in the land in question has been divested by a sheriff's deed under fi. fa. against her; and the petition in the present case was brought to procure an adjudication as to the interest of her children. It is admitted that these children have an interest in the land as heirs of their father, whose interest was not subject to the fi. fa. against their mother; but the question presented is whether these children originally took an interest for themselves under the terms of the deed from Samuel Stephens. The trial judge held that the deed conveyed title only to Andrew L. Keith and Eliza Ann H. Keith, and, accordingly, that Claud Chastain had title to a thirteen twenty-fourths undivided interest in the land described in the petition, as the former property of Eliza Ann H. Keith purchased by 'him at sheriff's sale, and that W. A. Fields was the owner of a one twenty-fourth interest in the land, as the share of J. Looper Keith, purchased by said Fields at sheriff's sale under an execution against J. Looper Keith. The present writ of error challenges the correctness of the judgment of the lower court.

H. H. Perry and J. G. Collins, both of Gainesville, for plaintiffs in error.

Charters, Wheeler & Lilly, of Gainesville, for defendants in error.

RUSSELL, C. J. (after stating the facts as above). It appears in the decree that it was agreed by all parties that their respective interests depended on the construction of the deed from Samuel Stephens, and the determination of the question whether Andrew L. Keith and his wife, Eliza Ann H. Keith, alone took title to the land conveyed, or whether those children of Andrew L. Keith and his wife, Eliza Ann H. Keith, which were in esse, also took title in common with their parents. It is insisted by learned counsel for the defendant in error that only Andrew L. Keith and Eliza Ann H. Keith are mentioned as parties of the second part, and that the grant is to the parties of the second part. Likewise that the warranty is to the parties of the second part. It is insisted that Andrew L. Keith and Eliza Ann H. Keith took the property in fee simple—an undivided one-half each; and that there are certain fixed principles, such as that, where there are repugnant clauses in a deed, the first must prevail; that the grantees must be certain and definite; and that the office of the habendum clause is to define the estate which the grantee has in the property granted; and that it cannot be repugnant to the estate granted in the premises. Blackstone is cited (book B, p. 241) to support the proposition that, after an estate in fee has been conveyed in the grant, it cannot afterwards be taken away or divested in the habendum clause. As we understand it, the contention of the defendants in error is that the deed from Samuel Stephens passed the estate in fee simple to Andrew L. and Eliza Ann H. Keith of an undivided one-half each, and that the grantor could not divest that estate by the habendum clause, even if he had used apt words, and had named the persons composing the heirs. To support this proposition are cited 18 C. J. 175; Lane v. Cordell, 147 Ga. 101, 92 S. E. 887; Pace v. Forman, 148 Ga. 507, 97 8. E. 70; Parker v. Smith, 140 Ga. 789, 80 S. E. 12; Ewing v. Shropshire, 80 Ga. 374, 7 S. E. 554; Whatley v. Barker, 79 Ga. 790, 4 S. E. 387; Huie v. McDaniel, 105 Ga. 319, 31 S. E. 189; Henderson v. Sawyer, 99 Ga. 234, 25 S. E. 312. We think the court erred in sustaining this contention; and that these children of Mr. and Mrs. Keith, who were in life on December 22, 1875, took equally with their parents a title in fee simple to the land of which the tract now in question is admitted to be a part.

Section 3659 of the Civil Code 1910, declares that—

"The word 'heirs, ' or its equivalent, is not necessary to create an absolute estate; but every conveyance, properly executed, shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance. If a less estate is expressly limited, the courts shall not, by construction, increase such estate into a fee, but, disregarding all technical rules, shall give effect to the intention of the maker of the instrument, as far as the same is lawful, if the same can be gathered from its contents; and, if not, in such case the court may hear parol evidence to prove the intention."

Also it is provided in section 4187 that—

"If two clauses in, a deed be utterly inconsistent, the former must prevail; but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect."

"The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction." Section 4266.

Also:

"The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part." Section 4268'(3).

The requirement that the intention of the parties should be given effect in the construction of a contract is so fundamental in this state that the foregoing Code sections cannot be overlooked, despite the old rule that later parts of a deed, if conflicting with earlier clauses, must yield thereto, and despitea mere apparent conflict which is easily reconciled when the instrument is considered as a whole. It is true that in the premises Andrew L. Keith and his wife, the daughter of the grantor, are alone mentioned as parties of the second part, and it is true that these parties of the second part are alone mentioned in the warranty; but when it...