Wills v. Pierce

• Decision Date: 10 October 1951
• Docket Number: No. 17557,17557
• Citation: 208 Ga. 417,67 S.E.2d 239
• Parties: WILLS et al. v. PIERCE et al.
• Court: Georgia Supreme Court

Page 239

67 S.E.2d 239

208 Ga. 417

WILLS et al. v. PIERCE et al.

No. 17557.

Supreme Court of Georgia.

Oct. 10, 1951.

Syllabus by the Court.

Where a grantor conveys land in fee simple, followed by a condition that the property be used by the grantee, his family, and his heirs as a home, and that upon abandonment of said use the property shall revert to the grantor's estate, such condition is void as being repugnant to the estate granted, for the reason that it necessarily inhibits alienation of the property; and, accordingly, the present petition seeking to enforce a forfeiture for breach of the above condition was subject to demurrer.

Mrs. Walter Tilley Pierce and others filed in Terrell Superior Court, against Mrs. J. C. Wills and others, a petition, which alleged substantially the following: On December 1, 1923, J. W. Tilley by warranty deed conveyed described realty known as the Aven Home to J. C. Wills. The deed contained the clause: 'The above property is conveyed to J. C. Wills [the grantee] to be used as a home by himself, his family and his heirs, upon condition that the same be used by him or them as a home and a residence, and further that upon the failure of the said condition and the abandonment of said property as a residence by [the grantee], * * * his family or heirs, the same shall revert to [the grantor's] * * * estate and go as directed by [the grantor's] * * * will.' The grantor died testate in 1924, and under the terms of his will the petitioners are the owners of the reversionary interest in the realty. The grantee died intestate in 1945, leaving as his sole surviving heirs his widow, Mrs. J. C. Wills, and two named children, who are the defendants. The condition under which the realty was conveyed has been violated, in that the defendants have abandoned the property as a home and residence, and are now residing elsewhere. The defendants in failing to use the property as a home and residence have forfeited their interest therein and petitioners at the owners of the reversionary interest elect to claim the immediate possession of the property. The petitioners prayed: that process issue; that the interest of the defendants in the realty be declared forfeited, and the fee-simple title thereof be decreed to be in the petitioners; and that the petitioners have general equitable relief.

The defendants demurred to the petition on the ground that it failed to set forth any cause of action against them. The trial court overruled the demurrer, and the defendants excepted.

Newell Edenfield, Atlanta, Phillip Sheffield, Blakely, for plaintiffs in error.

R. R. Jones, Dawson, for defendants in error.

ATKINSON, Presiding Justice (after stating the foregoing facts).

The granting clause in the deed under consideration was: 'In consideration of the sum of one dollar to me paid, I * * * do hereby sell and convey to [the grantee and] * * * his heirs, a tract or parcel of land and appurtenances in fee simple.' Then followed a description of the land, after which the grantor inserted the provision that the property was to be used as a home by the grantee, his family, and his heirs, and that upon the abandonment of the property as a residence by the grantee, his family, or his heirs, the same should revert to the grantor's...