Smith v. Thomas

• Decision Date: 09 May 1945
• Docket Number: 15161.
• Citation: 34 S.E.2d 278,199 Ga. 396
• Parties: SMITH et al. v. THOMAS et al.
• Court: Georgia Supreme Court

34 S.E.2d 278

199 Ga. 396

SMITH et al. v. THOMAS et al.

No. 15161.

Supreme Court of Georgia

May 9, 1945

Rehearing Denied June 7, 1945.

Syllabus by the Court.

An instrument in the form of a warranty deed reciting a consideration is not testamentary in character by reason of the fact that it contains the following clause: 'A life estate and interest is hereby reserved by the grantor herein which she may enjoy the possession, profits, and otherwise use said land the same as if she owned the fee-simple title. At the death of the grantor the fee-simple title is to vest in the grantee herein named.' Accordingly, the court did not err in granting an interlocutory injunction, on the application of the grantee thereunder, restraining subsequent grantees of a life tenant in a lease of the timber on the land conveyed from cutting and removing such timber from the premises therein.

The petition of Vernon Thomas and Lee S. Purdom against T. L Smith, Rufus Smith, and R. L. Horne alleged in substance that the petitioners were the owners of a described tract of land containing 526 acres, more or less, being part of lot 128 in the fourth district of Pierce County, Georgia that the defendants had without any authority entered upon the said land and had cut and removed therefrom certain timber, the amount of which being unknown to the petitioners; and that, unless restrained, the defendants would continue to cut and remove the timber thereon, resulting in irreparable injury to the petitioner. The defendants answered, admitting the cutting and removal of timber as alleged, but asserted their right to do so in virtue of a lease executed to the defendant Horne by Mrs. S.E. Merchant, dated November 28, 1944, and duly recorded; and alleged that, at the time the said lease was executed, the only conveyance of record in the said county under which the petitioners could claim any title to the land in question was a deed from Mrs. S.E. Merchant, dated March 10, 1939, and duly recorded, which deed contains the following limitation or reservation: 'A life estate and interest is hereby reserved by the grantor herein, which she may enjoy the possession, profits, and otherwise use said land the same as if she owned the feesimple title. At the death of the grantor the fee-simple title is to vest in the grantee herein named.' It is alleged that because of the said reservation the defendants' grantor, Mrs. S.E. Merchant, had the right to convey the timber under the lease to the defendant Horne.

On the interlocutory hearing the case was submitted upon an agreed statement of facts, which was in substance as follows: The only question to be determined is one of law as to whether the petitioners or the defendants have a superior title to the timber, and it involves the construction of the deed from Mrs. S.E. Merchant to Vernon Thomas and Mrs. Mollie Purdom, dated March 10, 1939, and recorded March 21, 1939. The only title the petitioners have is by reason of this deed and another from the same grantor to Vernon Thomas and Lee S. Purdom, dated January 10, 1945. It was agreed that the defendant Horne had entered upon the land in dispute and had cut and removed therefrom 7,000 feet of timber and 19 1/2 units of pulpwood. It was agreed that Lee S. Purdom was the sole surviving heir at law of Mrs. Mollie Purdom, deceased, Mrs. Mollie Purdom having died since the execution of the deed by Mrs. S.E. Merchant to Vernon Thomas and herself on March 10, 1939; and that Lee S. Purdom stands in the same legal right as to such deed as would Mrs. Mollie Purdom were she alive. It was further agreed that the deed of March 10, 1939, was on a printed form; and that the description of the property and the reservation therein were written with a typewriter, the granting and habendum clause being part of the printed form. It was agreed that the judge might decide the case upon the petition, the deed referred to therein, and the lease referred to in the answer of the defendants, together with the defendants' answer, all of which were put in evidence. An interlocutory injunction was granted, and the defendants excepted, assigning error thereon.

C. L. Cowart, of Glennville, for plaintiffs in error.

S. F. Memory, of Blackshear, and E. O. Blalock, of Waycross, for defendants in error.

DUCKWORTH, Justice (after stating the foregoing facts).

It is conceded that, if the instrument in the form of a deed executed on March 10, 1939, is a valid deed and the reservation therein is an ordinary life estate, the defendants would have no right under their lease from the life tenant to cut and remove the timber in question, and that the court did not err in granting the interlocutory injunction. The decisive question upon which the entire case turns is the proper interpretation of the reservation clause contained in that instrument. That clause expressly states that the reservation is a 'life estate and interest' and reserves for the grantor stated rights in the property, to wit, 'enjoy the possession, profits and otherwise use said land the...