Lane v. Coedell , 147 Ga. 100 ( 1917 )

Beck, J.

1. Under the conveyance to “Alma Lane and the heirs of her body by J. Oscar Lane, their heirs and assigns,” Alma Lane took an absolute fee-simple title to the property conveyed. In the case of McCraw v. Webb, 134 Ga. 579 (68 S. E. 324), it appears that in a deed executed before the passage of the married woman’s act, when a trust could be created for a married woman, the grantor conveyed to James Webb and Elizabeth Webb a certain tract of land, and in the tenendum clause it was recited that they were “to have and to hold the said tract of land unto the said James Webb and his wife Elizabeth Webb, for her, his wife Elizabeth Webb, her heirs and issue by the said James Webb, she, the said Elizabeth Webb, furnishing two thirds of the purchase-money, and the said James Webb conveying and by these presents does convey unto his wife, the said Elizabeth "Webb, and her issue by the said James Webb, his interest in said land,” with warranty title to James Webb and Elizabeth Webb, and signed by the grantor, Lueco Moore. It was held that the whole beneficial interest in the land passed to Elizabeth Webb, and that the words, “her heirs and issue by the said James Webb,” were words of limitation, and not of purchase. Substantially the same principle is ruled in the eases cited in the McCraw case. Civil Code, § 3661; Whatley v. Barker, 79 Ga. 790 (4 S. E. 387); Griffin v. Stewart, 101 Ga. 720 (29 S. E. 29).

2. Although under the ruling made in the first division of this opinion the title to the property was shown to be in Alma Lane exclusively, nevertheless the case should not have been dismissed upon general demurrer; for though the children, inasmuch as they had no interest in the property, were not proper parties to the action, the fact that they had been joined as parties would not work a dismissal of the case upon general demurrer. The court did not pass upon the special demurrers, but disposed of the entire case upon general demurrer. This ruling was error, and the ease must be remanded for another hearing.

Judgment reversed.

All the Justices concur.