Mosley v. Brown

• Decision Date: 17 January 1923
• Docket Number: 3305.
• Citation: 115 S.E. 260,154 Ga. 769
• Parties: MOSLEY ET AL. v. BROWN.
• Court: Georgia Supreme Court

115 S.E. 260

154 Ga. 769

MOSLEY ET AL. v. BROWN.

No. 3305.

Supreme Court of Georgia

January 17, 1923

Syllabus by the Court.

A deed executed on February 11, 1901, between certain parties of the first part, "and Camilla Mosley and the heirs of her body by Henry T. Mosley, * * * of the second part," wherein the grantors conveyed "unto said party of the second part, heirs and assigns," certain described lands, to "the only proper use, benefit, and behoof of the said parties of the second part, their heirs, executors and administrators, and assigns," with warranty of title "unto the said parties of the second part, her heirs executors, administrators and assigns," created an absolute estate in fee in the mother to the exclusion of her children in esse at the date of said conveyance.

It follows that a party claiming under the mother obtained a good title to the premises so conveyed, as against her children.

Error from Superior Court, Taylor County; Geo. P. Munro, Judge.

Suit by L. L. Brown, as administrator of Alfred Shepard, against H H. Mosley and others. Judgment for plaintiff, and defendants bring error. Affirmed.

C. W Foy, of Butler, for plaintiffs in error.

Brown & Brown, of Ft. Valley, and W. E. Steed, of Butler, for defendant in error.

HINES, J. (after stating the facts as above).

The deed, under which both parties claim, is between Pickins Byrd and others, "of the first part, and Camilla Mosley and the heirs of her body by Henry T. Mosley, * * * of the second part." This language appears in the statement of the parties to this instrument, and does not appear in the body of the deed. Standing alone, this language created a grant of the premises in dispute to "Camilla Mosley and the heirs of her body by Henry T. Mosley," and by the express language of the Civil Code 1910, § 3661, conveyed to the mother an absolute fee. Lane v. Cordell, 147 Ga 100, 92 S.E. 887. But as this language is found in that part of this instrument which names the parties thereto, it would not be controlling if the language of the conveying and habendum clauses required a different construction and conclusion. The conveyance is "unto the said party of the second part, heirs and assigns." The singular number is used in describing the party of the second part, and the reference here is clearly to Camilla Mosley. This constitutes a conveyance of the absolute fee to Camilla Mosley. Douglas v. Johnson, 130 Ga. 472, 60 S.E. 1041; Pace v. Forman, 148 Ga. 507, 97 S.E. 70. The habendum clause is "to the only proper use, benefit, and behoof of the said parties of the second part, their heirs, executors, and administrators, and assigns, in fee simple." Who are the parties of the second part here referred to? To answer this question, we must look to the caption of the deed in which the parties thereto are named; and we find that they are "Camilla Mosley and the heirs of her body by Henry T. Mosley." The covenant of warranty is "unto the said parties of the second part, her heirs, executors, and administrators and assigns." Who are the parties of the second part here referred to? Clearly, they are the same as those named in the caption of the deed, and are "Camilla Mosley and the heirs of her body by Henry T. Mosley." Having to refer to the caption to ascertain who are the parties of the second part referred to in the conveying and habendum clauses of this deed, the effect is the same as if the language, "Camilla Mosley and the heirs of her body by Henry T. Mosley," had been...