Shelton v. Edenfield

• Decision Date: 16 May 1918
• Docket Number: 612.
• Citation: 96 S.E. 3,148 Ga. 128
• Parties: SHELTON v. EDENFIELD.
• Court: Georgia Supreme Court

96 S.E. 3

148 Ga. 128

SHELTON v. EDENFIELD.

No. 612.

Supreme Court of Georgia

May 16, 1918

Syllabus by the Court.

The criterion for determining whether an instrument is a deed or a will is, whether it is to take effect immediately upon its execution and delivery, or after the death of the maker. Where an instrument was executed in the form of a fee-simple warranty deed, but after the description of the land it was recited that the grantor was "to have and control the sale of the land during her natural life, thence" to the named grantee, such instrument is a deed vesting title immediately in the grantee, and is not testamentary in character.

Where an instrument of writing was executed as a deed, was attested by two witnesses, one of whom was an officer authorized to witness deeds, purporting on its face to have been delivered and was recorded this raised a presumption of delivery; but this presumption is not conclusive, and between the parties to the instrument may be rebutted.

In a suit to recover land and to cancel a deed as a cloud upon the plaintiff's title, the burden is upon the plaintiff to make out such case as entitles him to the relief sought; and he failing to carry such burden, it is not error to award a nonsuit.

Error from Superior Court, Coffee County; J. I. Summerall, Judge.

Suit by J. L. Shelton, administrator, against J. S. Edenfield. Judgment of nonsuit, and plaintiff excepts and brings error. Affirmed.

Lankford & Moore, of Douglas, for plaintiff in error.

W. W Bennett, of Baxley, and Chastain & Henson, of Douglas, for defendant in error.

HILL J. (after stating the facts as above).

1. The instrument involved in the present controversy was executed in the form of a regular warranty deed in fee simple, with the exception that it contained the following language after the description of the land:

"The said Lucretia S. Edenfield to have and control the sale of the land during her natural life, thence the said Jessie S. Edenfield."

It is argued that this clause not only reserves in Mrs. Edenfield the use of the land, but also the right to sell it during her lifetime, and that therefore the instrument did not pass the title eo instanti it was executed, and that it is testamentary in character, and, having only two witnesses, is void as a will. Whether an instrument is a deed or a will depends on the intention of the maker as to the character of the estate and the time when the instrument is to take effect, to be determined by its own terms. Spalding v Grigg, 4 Ga. 75; Jackson v. Culpepper, 3 Ga 569; Daniel v. Veal, 32 Ga. 589; Robinson v Schly, 6 Ga. 515 (8); 4 Mich. Dig. Ga. R. 262, B, and cases there cited. It is also argued that the language "to have and control the sale of the land during" the life of the grantor, is repugnant to the idea of the vesting of the title in the grantee, and that its effect is to reserve in the grantor the right to revoke the instrument before her death. If the terms of the instrument, properly executed as a deed, clearly indicate an intention on the part of the maker to pass the title immediately upon its execution and delivery, it is a deed, although the enjoyment of the property conveyed may be postponed until the death of the grantor. Daniel v. Veal, 32 Ga. 589; Hamilton v. Cargile, 127 Ga. 762, 56 S.E. 1022 (3); Collier v. Carter, 146 Ga. 476, 91 S.E. 551. The real question, therefore, is whether the title is to vest immediately upon the execution and delivery of the instrument, or at the death of the maker. White v. Hopkins, 80 Ga. 154 (1), 159, 4 S.E. 863. The instrument involved in the present case is in form a warranty deed, and attested as such; and there is nothing in the language contained therein to negative the idea that it was intended to take effect immediately...