Stamey v. McGinnis , 145 Ga. 226 ( 1916 )

Lumpkin, J.

(After stating the foregoing facts.)

1. There are three possible constructions of this deed: (1) That it conveyed a life-estate only to Mrs. Stamey and any children who were in esse when it was executed, with no provision as to the remainder, and that therefore there was a reversion to the grantor or his heirs after the termination of these life-estates. This is inconsistent with the entire deed and its purpose as indicated throughout. There is nothing to show that the grantor intended to leave any of the estate ungranted, or contemplated a reversion. In this State where land is granted with no limitation or restriction upon the estate, the grant will generally be construed to be an estate in fee simple, though no words of inheritance are used. Civil Code (1910), § 3659. In the deed before us the granting clause is not for life only. In the habendum and tenendum clause the words “fee simple” are used, and following this is' a warranty clause sufficiently broad to cover the fee-simple estate just mentioned. This suggested construction is so at variance with the intent of the grantor, as evidenced by the entire deed, that it may be rejected without further comment. (2) The second possible construction is that the grantor conveyed the fee-simple estate to his daughter and such children as she might have in esse at the time of the execution of the deed. (3) The third possible construction is that he conveyed to his daughter what would have been a fee tail under the statute de donis, and what, by virtue of the act of 1821 and its codification and the adoption of the code, became a fee-simple estate in the daughter; and the clause, “also this is not to be sold for any consideration; it is to remain hers and her children, hers and their natural lives,” constituted an effort on the part of the grantor to prevent the sale of the property during the lifetime of his daughter and her children, rather than an effort to cut down the estate granted from a fee-simple to a life-estate.

Having eliminated the first possible construction, the choice remains between the last two. It will be observed that the words “bodily heirs” is used throughout the deed, except in the clause last quoted. These áre normally words of limitation, not of purchase, and are so construed except where the grantor shows that he intends for them to have a different meaning, or where the effect of their use is regulated by statute. In the granting clause it is stated that the grantor has granted, bargained, sold, and conveyed, and by these presents grants, bargains, sells, and conveys “unto the party of the second part, her own bodily heirs and assigns.” In the habendum and tenendum clause it is stated that the property is to be had and held “to the only proper use, benefit, and behoof of Fannie Stamey and her bodily heirs, the said party of the second part, her bodily heirs, executors, administrators, and assigns, in fee simple.” Mrs. Stamey, the daughter of the grantor, was the only named person, and the words “her bodily heirs,” normally words of limitation, are added. Also the added words, “her executors, administrators and assigns,” show that it was the intention of the testator to put some estate in her which her legal representatives and assigns might hold or have an interest in. This clearly negatives the idea that the deed was merely to create a life-estate.

Again, in the warranty clause it is stated that the premises are warranted “unto the said party of-the second part, her bodily heirs, executors, administrators, and assigns.” While in the beginning of the deed Mrs. Stamey and her bodily heirs are mentioned as of the second part, elsewhere throughout the deed she is spoken of as the party of the second part, and her bodily heirs are superadded to the conveyance to her. By the Civil Code (1910), § 3661 (Code of 1863, § 2230) it is declared that “Gifts or grants to one, and the heirs of his body, or his heirs male or heirs female, or his heirs by a particular person, or his children, or his issue, convey an absolute fee.” The word “children,” as used in this statute, applies only when the grantee has no children in esse when the grant takes effect. In the case before us it would appear, from the date of the deed and the statement that all of the plaintiffs were under twenty-eight years of age when the suit was brought, that one or more children of Mrs. Stamey were in esse when the deed was executed. Nevertheless in the deed the word children is used only once, and then not in the granting clause, but in connection with a statement that the property shall not be sold “for any consideration,” but is to remain “hers and her children, hers and their natural lives.” It is more reasonable that these words were intended to prevent a sale of the property during the time stated than that the word “children,” thus used, was intended to dominate the entire deed, in which the words “bodily heirs” are used again and again, and to change wholly the meaning as evidenced in its other clauses.

We hold that, construing this deed altogether, it conveyed a fee-simple estate to Mrs. Stamey. See, in this connection, Ewing v. Shropshire, 80 Ga. 374 (7 S. E. 554); Civil Code (1910), § 4187. The construction placed upon this deed is what we think is the dominant intent as evidenced by it as a whole. If it were held that there was an irreconcilable inconsistency between the granting clause of the deed and the restrictive clause above mentioned, the result would be the same.

If Mrs. Stamey had a fee-simple estate, an effort to prevent her from alienating it during her life was ineffectual. Her deed conveyed the title, and neither her heirs nor those of the grantor had any right to recover from her grantee or one holding under such grantee. Freeman v. Phillips, 113 Ga. 589 (38 S. E. 943); Crumpler v. Barfield & Wilson Co., 114 Ga. 570 (40 S. E. 808); Wright v. Hill, 140 Ga. 554, 556 (79 S. E. 546).

What has been said above controls the ease, and renders it unnecessary to discuss each ground of the demurrer, general and special, separately.

Judgment affirmed.

All the Justices concur.