Kytle v. Kytle

• Decision Date: 17 May 1907
• Citation: 57 S.E. 748,128 Ga. 387
• Parties: KYTLE v. KYTLE et al.
• Court: Georgia Supreme Court

57 S.E. 748

128 Ga. 387

KYTLE v. KYTLE et al.

Supreme Court of Georgia

May 17, 1907

Syllabus by the Court.

A paper in the form of a deed, attested as a deed, and delivered to the party named as grantee, conveying certain described property, "together with all the rights and privileges thereunto belonging, at my death, forever, in fee simple," is not testamentary in its character, but is a conveyance in praesenti, with a reservation of a life estate in the grantor.

A deed recited that it was made "for and in consideration of the natural love and affection" the grantor bore for his son, the grantee, and the grantee "is to support" the grantor, and reserved a life estate to the grantor. Held: (1) The acceptance of the deed by the grantee bound him to carry out the covenants therein contained. (2) The deed contained a covenant on the part of the grantee to support the grantor during his natural life. (3) If the grantee failed or refused to support the grantor, a right of action in him for such failure upon his death passed to his legal representatives, who could recover from the grantee such a sum as represented the reasonable value of the support of the grantor according to his circumstances and condition in life.

When a grantee accepts a deed, and thereby becomes bound by the covenants therein, and the instrument is under seal, the period of limitation applicable to a suit brought for a breach of the covenants is 20 years.

The verdict in favor of the defendants on their answer in the nature of a cross-bill being largely in excess of the amount claimed in the answer, a new trial should have been granted upon this ground.

Error from Superior Court, Habersham County; A. J. Kimsey, Judge.

Action by W. W. Kytle against W. S. Kytle and others to recover land. Judgment for defendants, and plaintiff brings error. Reversed.

A paper in the form of a deed, attested as a deed, and delivered to a named grantee, conveying certain property, together with all the rights and privileges thereunto belonging, "at may death forever in fee simple," is not testamentary.

W. W Kytle brought an action against W. S. Kytle and others to recover possession of a described parcel of land and mesne proflts. The deed under which the plaintiff claimed was in the following language: "This indenture, made this the eleventh day of January, eighteen hundred and ninety-four between J. B. Kytle, of the county of Habersham, and W. W Kytle, of the county of Banks, of the state aforesaid witnesses: That the said J. B. Kytle, for and in consideration of the natural love and affection he has for his son, W. W. Kytle, and that the said W. W. Kytle is to support the said J. B. Kytle, hereby gives, grants, and conveys to the said W. W. Kytle, his heirs and assigns, all that tract of land lying in Habersham county, Georgia, known as lot No. 65, in the Twelfth district of Habersham county containing 250 acres, more or less, adjoining land of John Kytle on the south, Mrs. Bentley on the east, Mrs. Henderson on the north, Williams on the west, together with all the rights and privileges thereunto belonging, at my death, forever, in fee simple. In witness whereof the said J. B. Kytle has hereunto set his hand and seal the day and year above written. J. B. Kytle. [L. S.] Signed, sealed, and delivered in the presence of A. L. Griffin. A. J. Griffin, N. P. & J P." The defendants filed an answer in which they admitted that they were in possession of the property sued for, but set up title in themselves, and denied all liability for rent. They also alleged that they had been in possession of the property for more than seven years, under written evidence of title, prior to the filing of the suit. The defendants amended their answer by alleging that the paper referred to in the plaintiff's abstract of title was a will, and not a deed, and that, if it was a deed, it conveyed only such interest in the property as the grantor had at the date of his death, and that prior to that time the grantor had conveyed the land to certain named children, such conveyances bearing date December 27, 1898; that the expressed consideration of the deed to plaintiff was that the plaintiff was to support the grantor during his life, which the plaintiff failed to do; that the only means of support of the grantor was this land, and that the defendants, with whom he resided, supported him in sickness and health, and gave him all the attention that he needed during his lifetime, and when he died gave him a decent interment, the services thus rendered being worth $600, which should be paid by the plaintiff; that, if the title passed to the plaintiff, the defendants were entitled to judgment against him for that sum, with interest, and that their judgment should be made a special lien upon the land as in the nature of purchase money; that the plaintiff is insolvent; that the grantor died intestate, and there is no administration; and that the defendants are the heirs at law and of full age. It is alleged in general terms that the deed of the plaintiff was secured by fraud and misrepresentation. It is also alleged that both the plaintiff and his grantor treated the conveyance under which the plaintiff now claims as of no effect. The prayer of the answer is that the paper upon which the plaintiff relies as a deed be decreed to be a will, and ineffective for the want of sufficient witnesses; that, if it is a deed, it be declared to convey only such interest as the grantor owned at the date of his death; and that the defendants have judgment against the plaintiff for the amount above referred to, with interest, and that the same be declared to be a special lien upon the land. Pending the trial of the case, other children of the grantor intervened and asked to be made parties to the suit and be allowed to join in the defense already filed. An order making them parties was allowed, so far as the record discloses, without objection. At the trial the jury returned a verdict finding that the deed relied on by the plaintiff was a valid deed, but that he had failed to comply with his part of the contract contained therein, and also finding in favor of the defendants for the sum of $1,031, and that this be in the nature of a lien for purchase money upon the land sued for. A judgment was entered in accordance with this verdict. The plaintiff made a ...