Price v. Gross

• Decision Date: 17 May 1918
• Docket Number: 684.
• Citation: 96 S.E. 4,148 Ga. 137
• Parties: PRICE ET AL. v. GROSS.
• Court: Georgia Supreme Court

96 S.E. 4

148 Ga. 137

PRICE ET AL. v. GROSS.

No. 684.

Supreme Court of Georgia

May 17, 1918

Syllabus by the Court.

An instrument as follows: "State of Georgia, Washington County, February 22, 1864. After the death of my father Bryant A. Whitfield, and my mother, Martha Whitfield, his wife, and the said Bryan E. D. Whitfield [the maker], of the same county, and state aforesaid, give unto my beloved sister, Mourning G. Whitfield, the land and plantation whereon my father and mother now lives, being two hundred acres, more or less, to raise and educate her children, and not subject to any husband or future husband's debts; and also give her all the stock of any kind on or belonging to the place where my father and mother lives, and I also give my sister, Mourning G. Whitfield, all the household and kitchen furniture [designating it]. * * * If I, the said Bryan E. D. Whitfield, be so blessed by the kind providence of God to return from this present war and feel disposed to sell or settle it, this deed of gift is null and void otherwise in full force and virtue in law. Sealed, signed and delivered in presence of these witnesses"--attested as a deed and delivered by the maker at the time of its execution to the donee, who took actual possession of the land referred to in the instrument and held the same to the date of her death, is a deed, and the court did not err in admitting it in evidence as a part of the plaintiff's chain of title.

A deed to land will not be declared void for uncertainty of description, if the deed is certain, or if it furnish the key to the identification of the land intended to be conveyed by the grantor. The doctrine, "Id certum est quod certum reddi potest," here applies. Applying this rule, the deed set out in the preceding headnote was not void for uncertainty of description. The undisputed evidence having shown title in the plaintiff, and the evidence in behalf of the defendants having failed to raise an issue for the jury, there was no error in directing a verdict in favor of the plaintiff for the premises in dispute.

Additional Syllabus by Editorial Staff.

The test generally applied to determine whether an instrument is a deed or a will is whether it is to take effect immediately or only after the death of the maker; if its effect depends upon the event of the death of the donor as necessary to consummate it, it is generally held that the instrument is a will, and not a deed.

The primary rule is to give effect to the intention of the maker.

If it be doubtful whether the instrument is a deed or will, it will be held to be a deed; the court preferring to give the intention of the maker some effect, rather than to defeat his intention altogether.

The possession of the life tenant was the possession of the remaindermen.

Error from Superior Court, Washington County; R. N. Hardeman, Judge.

Suit by M. L. Gross, as administrator of the estate of Mourning G. Whitfield, against Mrs. Mary Price and Wells Whitfield. Directed verdict for plaintiff, motion for new trial overruled, and defendants bring error. Affirmed.

In view of Civ.Code 1910, § 3828, an instrument reciting that after death of maker's father and mother and of maker his sister should be given plantation, stock, and furniture, and that if maker returned from war and sold plantation the gift should be void, signed, and attested as a deed, and then delivered to donee, was a deed, and not a testamentary instrument.

R. G. Price, of Louisville, B. T. Rawlings, of Sandersville, and James K. Hines, of Atlanta, for plaintiffs in error.

M. L. Gross and A. R. Wright, both of Sandersville, for defendant in error.

GEORGE J.

M. L. Gross, as administrator of the estate of Mourning Whitfield, brought suit in Washington superior court against Mrs. Mary Price and Wells Whitfield, for the recovery of 200 acres of land described in plaintiff's petition. The plaintiff introduced his application, as administrator of the estate of Mourning Whitfield, for leave to sell the premises in dispute as the property of his intestate, and the order of the court of ordinary of Washington county authorizing such sale. Over the objection that the same was a will, and not a deed, the plaintiff introduced in evidence the following writing:

"State of Georgia, Washington County. February 22, 1864. After the death of my father, Bryant A. Whitfield, and my mother, Martha Whitfield, his wife, and the said Bryan E. D. Whitfield, of the same county, and state aforesaid, give unto my beloved sister, Mourning G. Whitfield, the land and plantation whereon my father and mother now lives, being two hundred acres, more or less, to raise and educate her children, and not subject to any husband or future husband's debts; and also give her all the stock of any kind on or belonging to the place where my father and mother lives, and I also give my sister, Mourning G. Whitfield, all the household and kitchen furniture with all the plantation tools of every kind of implements belonging thereunto even down to the handsaw and gimblet. If I, the said Bryan E. D. Whitfield, be so blessed by the kind providence of God to return from this present war and feel disposed to sell or settle it, this deed of gift is null and void, otherwise in full force and virtue in law. Sealed, signed, and delivered in presence of these witnesses. [ [Signed] Bryan E. D. Whitfield. Attest: Agnes T. Veal. H. B. Veal."

H. B. Veal, one of the subscribing witnesses, testified to the execution and delivery of the writing by Bryan E. D. Whitfield to his sister, Mourning Whitfield, and that Bryant Whitfield, the father of Bryan E. D. Whitfield, and Martha Whitfield, the mother of Bryan E. D. Whitfield, were in the actual possession of the premises described in the writing at the time of its execution; i. e., the same land described in the plaintiff's petition. Bryant Whitfield survived his wife Martha, and died about 1879. Mourning Whitfield died four or five years before the institution of this suit. At the time of the execution of the instrument Bryant Whitfield and Shelman W. Whitfield, a son of Bryant Whitfield and a brother of Bryan E. D. Whitfield, were present. Shelman W. Whitfield referred to the property embraced in the instrument, being the same property involved in the present dispute, before the war, during the war, and after the war, as the property of Bryan E. D. Whitfield. He recognized the property as being the property of Bryan E. D. Whitfield, and after the war recognized the property as the property of Mourning G. Whitfield by virtue of the gift to her by Bryan E. D. Whitfield. Mourning G. Whitfield went into the possession of the property in 1864, that is, she retained the possession of the property and claimed it under the deed from Bryan E. D. Whitfield, from 1864 to the date of her death. Wells Whitfield, one of the defendants, claimed under Mrs. Mary Price, the real defendant. The latter introduced in evidence a grant from the state of Georgia to Bryant Whitfield, embracing the premises in dispute, dated October 10, 1835, and a deed from Bryant Whitfield to Shelman Whitfield, conveying the premises in dispute, dated January 10, 1838. The deed was first recorded on January 28, 1842, and again recorded on July 27, 1893. She next introduced a deed from Shelman W. Whitfield to Mourning G. Whitfield, conveying the premises in dispute, which deed, with an addendum thereto, and the date of record thereon, is as follows:

"Georgia, Washington County. Know all men by these presents, that I, Shelman W. Whitfield, of the county and state aforesaid, for the natural love and good will which I have and do bear unto my sister, Mourning G. Whitfield, of the same county and state, do give and bequeath unto her and her children at the death of my father and mother, and not before only by their consent, to her and her children forever, the part of a grant of land whereon my father now lives, originally granted for six hundred and fifty acres, the part now conveyed to be the part occupied by Bryant A. Whitfield as my father, and bounded as follows [[describing the land]: To have and to hold the above-mentioned land, with every benefit, privilege appurtenances belonging to or in anywise appertaining thereunto, to her my sister, Mourning G. Whitfield, forever, to raise and educate her children, and not subject to the debts of her husband nor no future husband. And if my sister, M. G. Whitfield, should die without child or children, this land goes back to her sisters, to be equally divided amongst them. In witness whereof I, the said Shelman W. Whitfield, have sealed, signed, and delivered in presence of these witnesses. [ Signed] Shelman W. Whitfield. [ [L. S.] Attest: W. G. Bryan, A. L. Josey. W. P. Smith, J. P."

Addenda: "My daughter, Mourning G. Whitfield, is barred from selling this land that I now live on until she arrives to 60 years of age, then she may sell it and put the money to her own use. If this is not complied with, this deed is null and void in law to the buyer; if complied with, this is as good a deed as any. April 16, 1874. [ Signed] Shelman Whitfield. Witnesses: John R. Gross. Lucius B. Kendrick. Wm. P. Smith, J. P."

"Recorded June 5, 1876."

The oral evidence...