Nelson v. Maddox Grocery Co. , 153 Ga. 128 ( 1922 )

Gilbert, J.

A. L. Nelson et al., as the sole heirs at law of Adam Nelson, brought an action for land against Maddox Grocery Company. The petition alleges, in. substance, that the father of Adam Nelson died in 1872 or 1873, leaving a will, which was duly probated, the third item of which, devising the land in question, was as follows: “ I give and devise to my son, Adam Nelson, and the heirs of his body, and, in default of said heirs at the time of his death, to my daughter, Delphia,” described land, including the land sued for herein; that the testator held title to the land at the time of his death; that plaintiffs claim fee-simple title under their father, Adam Nelson, who died on April 4, 1915, leaving his wife, who is still in life, and plaintiffs, who are his children; that there has been no administration upon the estate of Adam Nelson; and that the defendant, who is in possession of the land, claims under Adam Nelson. The court sustained a general demurrer to the petition, and the plaintiffs excepted.

The petition contains no allegation that Adam Nelson died seized and possessed of the land in controversjr, nor does it negative a- grant by him. It does allege that the defendant has possession and claims under him. The court did not err in sustaining the general demurrer and in dismissing the petition.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent because of sickness.