Patellis v. Tanner

• Decision Date: 10 February 1944
• Docket Number: 14750.
• Citation: 29 S.E.2d 419,197 Ga. 471
• Parties: PATELLIS v. TANNER et al.
• Court: Georgia Supreme Court

29 S.E.2d 419

197 Ga. 471

PATELLIS v. TANNER et al.

No. 14750.

Supreme Court of Georgia

February 10, 1944

Rehearing Denied March 9, 1944.

Syllabus by the Court.

1. An instrument in the form of a deed, reciting that it is an indenture, and naming a consideration, using the words 'sold and conveyed,' and containing a covenant of warranty by 'the grantor,' operated to convey title in praesenti, although it also contained a clause that the grantor 'has at the death of said Moses J. Kirkland, Sr. [the grantor], sold and conveyed,' etc.

2. A deed which purports to convey certain land to two named persons during their natural lives, 'then to their heirs and assigns,' operates to create a life estate in the two persons named and a remainder over to such children as were in being at the time of the vesting of the estate.

(a) The time of the vesting of the estate refers to the vesting of possession at the death of the life tenants.

3. Where land is held by a life tenant and taxes are assessed against him and executions are issued in personam, a sale under the levy of such executions passes only the life estate.

4. A recital in a deed, by way of further description of the premises, making reference to another deed from one who according to the registry of deeds, had at that time no title that he could convey (there being on record a deed to the same property from him to the grantor in the first-mentioned deed), the first-mentioned deed not referring to such other deed as the source of the grantor's title, is not sufficient to justify a holding that said reference carried notice that the grantees in said last-named deed were clothed with title.

On February 17, 1942, Mrs. Minnie Wilcox Patellis brought an action against A. J. Tanner and Mrs. Melvin L. Davis to recover land and mesne profits. Plaintiff alleged that she and the defendants claimed under a common grantor, to wit Moses J. Kirkland, Sr. She set forth in detail the facts and muniments of title on which she based her claim, and likewise set forth the based on which the defendants asserted title. The trial court sustained a general demurrer to the petition, and plaintiff excepted.

The petition alleges the following: (a) On April 23, 1881, M. J. Kirkland, Sr., conveyed the land to M. J. Kirkland, Jr., the deed being recorded on February 9, 1883. (b) On July 13, 1889, M. J. Kirkland, Jr., conveyed the same land to Mrs. Margie W. Kirkland, the deed being recorded on February 11, 1942. (c) On May 22, 1891, Mrs. Margie Kirkland conveyed the land to Moses J. Kirkland, Sr., the deed being recorded on February 11, 1942. (d) On May 11, 1903, Moses J. Kirkland, Sr., executed an instrument, the petition declaring that 'this indenture made this the 11th day of May, 1903, between Moses J. Kirkland, Sr., of the County of Coffee and State of Georgia, of the first part, and M. J. Kirkland, Jr., and Margie W. Kirkland, of the County of Coffee and the State of Georgia, of the second part, witnesseth: That the said Moses J. Kirkland, Sr., in consideration of five hundred dollars in hand paid, receipt of which is hereby acknowledged, has at the death of the said Moses J. Kirkland, Sr., sold and conveyed to the said M. J. Kirkland, Jr., and Margie W. Kirkland during their natural lives, then to their heirs and assigns, the following described real estate: 200 acres, more or less, of lot of land No. 451, in the 6th land district of originally Appling but now Coffee County. Said 200 acres being on the south part of said lot and on the south side of Dry Creek. Said Dry Creek being the line as per plat attached to deed from M. J. Kirkland, Sr., dated April 23, 1881. The grantor hereby warrants the title thereof against the claims of all persons.' This was recorded on September 30, 1908. It is alleged (in paragraph 8 of the petition) that under the deed, referred to in the foregoing quoted deed as having been made by Kirkland, Sr., to Kirkland, Jr., on April 23, 1881, M. J. Kirkland, Jr., entered thereon, built a house and opened up a small farm thereon, moved his family and resided thereon, and made it his home continuously, under said deed, from that time until the date of the deed from M. J. Kirkland, Jr., to Margie W. Kirkland, on July 13, 1889. In paragraph 10 it is alleged that the life tenants were admitted into possession, and that they continued to hold possession until the death of the last deceased life tenant, Margie W. Kirkland, on December 22, 1937. (e) On September 30, 1908, M. J. Kirkland, Jr., executed a deed to Margie W. Kirkland, conveying an undivided one-half interest in and to the same land, which was recorded October 1, 1908. (f) Quitclaim deeds, each reciting a one dollar consideration, from various persons, alleged to be all of the heirs at law of M. J. Kirkland, Jr., and Margie W. Kirkland, dated February 7, 1942, and recorded on February 10, 1942. (g) That the defendants claim under the deed from Moses J. Kirkland, Sr., quoted in paragraph (d) of this statement, and under certain conveyances hereinafter mentioned. (h) Certain deeds based on sales under levies of tax executions issued in personam against Margie W. Kirkland for taxes for the years 1928, 1929, 1930, 1932, and 1933. (i) Deed from Margie W. Kirkland to G. S. Tanner, dated December 29, 1936, recorded December 30, 1936, conveying 150 of the 200 acres first above described (the remaining 50 acres having been theretofore sold under a tax execution to T. P. Kirkland, who subsequently conveyed to G. S. Tanner); said deed containing the following clause: 'same being a part of the lands conveyed by Moses J. Kirkland to Margie W. Kirkland and M. J. Kirkland, Jr., said deed being dated May 11, 1903, recorded September 30, 1908, in Deed Book 25, page 45, in office of the clerk of the superior court of Coffee County, Georgia.' (j) Deed from G. S. Tanner to A. J. Tanner and Mrs. Eliza J. Smith (now Mrs. Melvin J. Davis), dated January 6, 1938, recorded on January 20, 1938.

By amendment, the plaintiff alleged that more than one of the tax deeds above referred to contained as a part of the description the words, 'and being the same lands as described in deed from Moses J. Kirkland, Sr., to M. J. Kirkland, Jr., and Margie W. Kirkland, as recorded in Deed Book 25, page 44, in office of the clerk of the superior court of Coffee County, Georgia;' that a similar recital is in the deed from Margie W. Kirkland to G. S. Tanner, under which the defendants claim, and also in a turpentine lease covering 150 acres of this land, from G. S. Tanner to A. J. Tanner. A second count in the petition sought mesne profits.

Heath & Heath, of Douglas, for plaintiff in error.

Mingledorff & Roberts, of Douglas, for defendants in error.

GRICE Justice.

1. The first question presented is, whether or not the instrument executed by Moses J. Kirkland, Sr., and delivered to M. J. Kirkland, Jr., and Margie W. Kirkland, dated May 11, 1903, conveyed title, the question being whether it is testamentary in character, so as not to convey in praesenti.

The instrument was in the form of a deed. It calls itself an indenture, recites a consideration, uses the words 'sold and conveyed' and contains a covenant of warranty. So much of the instrument as is revealed in the record is set forth in the preceding statement of facts. The argument that it is testamentary in character rests upon the fact that it contains the clause 'has at the death of the said Moses J. Kirkland, Sr., sold and conveyed,' etc. Similar instruments have been before this court a number of times and have been dealt with in the following cases. Among those holding that deeds somewhat similar are not valid to convey a present estate, see Symmes v. Arnold, 10 Ga. 506; Johnson v. Yancey, 20 Ga. 707, 65 Am.Dec. 646; Brewer v. Baxter, 41 Ga. 212, 5 Am.Rep. 530; Arnold v. Arnold, 62 Ga. 627, 628(4); Sperber v. Balster, 66 Ga. 317; Blackstock v. Mitchell, 67 Ga. 768; Johnson v. Sirmans, 69 Ga. 617; Barnes v. Stephens, 107 Ga. 436, 33 S.E. 399. For cases holding that the instrument was a deed, see the following:Gay v. Gay, 108 Ga. 739, 32 S.E. 846; West v. Wright, 115 Ga. 277, 41 S.E. 602; Wynn v. Wynn, 112 Ga. 214, 37 S.E. 378; Brice v. Sheffield, 118 Ga. 128, 44 S.E. 843; Griffith v. Douglas, 120 Ga. 582, 48 S.E. 129; Isler v. Griffin, 134 Ga. 192, 67 S.E. 854; Hughes v. Hughes, 135 Ga. 468, 69 S.E. 818; Pruett v. Cowsart, 136 Ga. 756, 72 S.E. 30; Mays v. Fletcher, 137 Ga. 27, 72 S.E. 408; Collier v. Carter, 146 Ga. 476, 91 S.E. 551, 11 A.L.R. 1; Shelton v. Edenfield, 148 Ga. 128, 96 S.E. 3; Price v. Gross, 148 Ga. 137, 96 S.E. 4; Crawford v. Thomas, 150 Ga. 435, 104 S.E. 211; and Montgomery v. Reeves, 167 Ga. 623, 146 S.E. 311. The trend of the modern decisions is to uphold such an instrument as a deed, although it may contain words strongly suggestive of the idea that it is not to take effect until the death of the grantor. In Isler v. Griffin, supra, the headnote is: 'An instrument attested as a deed and in all material respects in the form of a deed, except that it contains the words, 'to take effect from and after my [the maker's] death and * * * from and after the death of my father and mother, and not until then,' should be construed to be not a will but a conveyance passing title in praesenti, with right of possession postponed.' Another comparatively recent case along the same line is Montgomery v. Reeves, supra, wherein it was held: 'A paper in the form of a warranty deed and properly executed as such is not testamentary in character, although it contains the clause: 'This deed is made with the condition attached that same is not to take effect until after the death of the maker, he reserving to himself the right to control same and the rents and profits thereof as long as he live...