Love v. Love, 46866

• Decision Date: 06 September 1989
• Docket Number: No. 46866,46866
• Citation: 383 S.E.2d 329,259 Ga. 423
• Parties: LOVE, et al. v. LOVE.
• Court: Georgia Supreme Court

Page 329

383 S.E.2d 329

259 Ga. 423

LOVE, et al. v. LOVE.

No. 46866 Supreme Court of Georgia.

Sept. 6, 1989.

Reconsideration Denied Sept. 27, 1989.

J. Carlton Warnock, Soperton, John J. Ellington, Vidalia, for Curry Love.

Clarence L. Martin, Savannah, for Johnnie Mae Love et al.

GREGORY, Justice.

In 1929 Armstead Love executed a deed conveying his entire undivided 1/4 interest in 150 acres of land ¹ in Treutlen County to his wife, Florence, and seven children in eight equal, undivided fee simple shares. In 1932 Florence Love executed a deed which purported to retain a life estate for herself in essentially the same tract of property, ² and to convey to her children, following her death, seven equal and undivided life estates in the property. At the death of each child, his interest in the property was to go to his bodily heirs in fee. If there were no bodily heirs, the deed provided that the child's share would revert back to Florence's estate, and "be divided among the balance of heirs."

In 1987 Emmuel Love, one of two surviving children of Armstead and Florence Love, died without issue, willing his interest in the property to his brother, appellee Curry Love. Thereafter appellants, seven grandchildren of Armstead and Florence Love, brought this equitable action to construe the deeds in question. Appellants sought a determination that the deed of Florence Love rather than the deed of Armstead Love controls the parties' interests in the property in question. We hold that each deed conveys a portion of the interests now held by the parties.

It is undisputed that there is no record of any conveyances of the property in question other than the respective deeds of Armstead and Florence Love. The trial court determined that Florence Love could convey in the 1932 deed only that portion of the property which she had received from Armstead Love in the 1929 deed: an undivided 1/32 fee simple interest in the entire tract. ³ Therefore, the trial court granted Curry Love's motion for summary judgment, concluding that Curry Love has the following interests in the subject property: an undivided 1/32 fee simple interest which the Armstead Love deed conveyed to him; an undivided 1/32 fee simple interest which Emmuel Love received from the Armstead Love deed and willed to Curry Love; and a life tenancy in the entire undivided 1/32 interest which Florence Love conveyed to her surviving children by the 1932 deed.

1. The appellants argue that the trial court erred in granting summary judgment to appellant because appellant's affidavit contained inadmissible legal conclusions. The rule is that where an affidavit contains conclusions which would not be admissible in evidence, the conclusions are to be disregarded in considering the affidavit in connection with the motion for summary judgment. Chandler v. Gately, 119 Ga.App. 513(1), 167 S.E.2d 697 (1969). There being nothing in the record to indicate the contrary, we presume that the trial court followed this rule.

2. Appellants argue that Florence Love established a claim of title to the subject property by adverse possession following execution of her deed in 1932. In support of this argument appellants point out that the parties have always "operated under the provisions" of the Florence Love deed. Even assuming this to be true, permissive possession cannot be the foundation of a prescription absent actual notice. OCGA § 44-5-161(b). There is no evidence of actual...