Mosley v. Brown, (No. 3305.)

• Decision Date: 17 January 1923
• Docket Number: (No. 3305.)
• Citation: 115 S.E. 260,154 Ga. 769
• Parties: MOSLEY et al. v. BROWN.
• Court: Georgia Supreme Court

154 Ga. 769

115 S.E. 260

MOSLEY et al.

v.BROWN.

(No. 3305.)

Supreme Court of Georgia.

Jan. 17, 1923.

(Syllabus by the Court.)

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.

L. L. Brown, as administrator of the estate of Alfred Shepard, brought suit against Olin Knolton, H. H. Mosley, P. P. Mosley, B. V. Mosley, Mrs. R. R. Watts, and Mrs. G. G. Johnson, to recover a certain tract of land which is fully described in the petition. Both the plaintiff and the defendants claim under a common grantor, under a deed dated February 11, 1901, 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 deed recites "that the said parties of the first part, for and in consideration of the sum of §385, * * * have granted, bargained, sold, and * * * confirmed * * * unto the said parties of the second part, heirs and assigns, " a certain tract of land which is fully described in said deed, and which constitutes the premises in dispute. The habendum of said deed is as follows:

"To have and to hold the said above granted and described property * * * 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; and the said parties of the first part the said bargained property above described unto the said parties of the second part, her heirs, executors, administrators, and assigns, against the said parties of the first part, their heirs, executors, and assigns, and against all and every other person or persons, shall and will and does hereby warrant and forever defend by virtue of these presents."

It was agreed between the parties that the right of the plaintiff to recover depends upon the construction of the above deed. It was agreed that the defendants are the heirs of the body of Camilla Mosley by Henry T. Mosley, and were all in life at the time this deed was made. The only question submitted to the court was whether the deed conveyed to Camilla Mosley an absolute fee, to the exclusion of her said children by Henry T. Mosley. If so, the plaintiff was entitled to recover, and the judgment of the court below should be affirmed. If the said children of Camilla Mosley take any interest in the land conveyed by this deed, then judgment should have been rendered in favor of the defendants.

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). [1, 2] The deed, under which both parties claim, is between 1'ickius 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. S87. 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. Eorman, 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...