Kinnon v. Mercer

Nichols, Presiding Judge.

J. B. Kinnon filed a petition against Mamie K. Mercer seeking a declaratory judgment as to his rights under a deed executed by Mrs. Alice Kinnon, now deceased, on October 23, 1961. The deed, prepared on a warranty deed form, contained typewritten provisions in conflict with the printed provisions. The trial court sustained the defendant’s general demurrer to the petition and in the same judgment construed the deed contrary to the plaintiff’s contentions, and the plaintiff appealed. The appeal was transferred to this court by the Supreme Court. See Kinnon v. Mercer, 222 Ga. 309 (149 SE2d 685). Held:

Under the decisions of the Supreme Court in Crews v. Crews, 174 Ga. 45 (162 SE 107) and Rainey v. Spence, 185 Ga. 763 (196 SE 416), the deed, though poorly worded, showed that it was the intention of the grantor to grant a life estate to the plaintiff with remainder to the daughter of the grantor and grantee. Therefore, the plaintiff’s petition, which had a copy of the deed attached thereto as an exhibit, showed on its face that he was not entitled to the relief sought, and under the decision of the Supreme Court in State Hwy. Dept. v. Williams Lmbr. Co., 222 Ga. 23 (148 SE2d 426), the general demurrer which challenged the legal sufficiency of the petition and the right of the petitioner to have his case tried was properly sustained.

Argued September 13, 1966 Decided September 30, 1966. Helms & Dismukes, Jack J. Helms, for appellant. Kopp & Heavy, J. Edwin Heavy, for appellee.

Judgment affirmed.

Hall and, Deen, JJ., concur.