Ball v. Wallace , 32 Ga. 170 ( 1861 )

By the Qourt

Lyon, J.,

delivering the opinion.

Some of the well settled rules for the exposition of deeds and other writings are, that the constructions ought to be as favorable and as near the apparent intent of the parties as possibly may be, and as the law will permit; that too much regard is not to, be had to the natural and proper signification of words and sentences, to prevent the simple intention of the parties from taking effect; for that the law is not nice in grants, and, therefore, it doth often transpose words contrary to their order to bring them to the intent of the parties. Willes Rep., 332; Shep. Touch., 88. That all the words of the deed, in construction, be taken most strongly against him who doth speak them, arid most in advantage of the other party. Shep. Touch., 87. That the grantee be sufficiently named, or, at the least, set forth and distinguished by some circumstantial mattei'. Ib., 235. Dedi et eoneessi be the most apt words for all kinds of grants, yet, it may be by other words and the grant as good as those words—no formal words are necessary. Ib., 232. That the judges ought to be curious and subtile to invent reasons, and make acts elfectual according to the just intent of the parties. "Willes Rep., 684.

1. Looking at this paper, then, in the sense of these authorities and rules, with a view to give effect to the intention of the grantor, if it can be done consistently with the law, we are constrained to the conclusion that it was the intention of Samuel Gray, the maker, to vest the title to this negro, by this paper, in his co-heirs at law of his father, who, like himself, took distributive shares of that estate, in case he died without child or children. In other words, it was a gift to the persons answering that description, reserving a life-estate in himself, subject to be defeated by his leaving child or children at his death. Whatever may have been the inducement tó such agreement or gift; 'whether on account of a general agreement for distribution of the estate of the' father by all the heirs, on these conditions, or whether the property of the estate for distribution was subject to such a limitation, or whether-he was moved thereto- by his mere volition, is wholly immaterial. That, to our mind, is the intention manifested by this instrument, the grantor using the words “ to return to ” in the sense of to vest in, as the simplest mode of expressing his purpose and effecting’ his intention, and as there is nothing in this intention inconsistent with the rules of law, the Court must give effect thereto.

The Court below ruled out the paper as evidence of title in the plaintiff, and awarded a non-suit on three grounds:

2. —1. That the paper was uncertain; why, we cannot see. There is a grantor; grantees plainly referred to, and designated so that- they are easily ascertained, a subject matter of gift, and a'time when the gift was to take effect in the grantees.

3. —2. That it was voluntary. Concede that this is so; still, the gift is good. This is not an executory agreement, in which a mere intention is expressed to make the gift, but an executed one, that vests the title, and nothing more remains to be done to complete it.

4.—3. That the paper contains no words of conveyance. We have already seen that no particular form of words of conveyance is necessary, so that the words used indicate an intention to convey, and that the words in this paper are sufficient for that purpose; for these reasons, we think the Court below erred in rejecting the paper tendered as evidenc® of title in the plaintiff, and in granting a non-suit.

Judgment reversed.