133 Ga. 784 | Ga. | 1910
On September 7th, 1866, Andrew M. Manning conveyed to Sarah J. Manning a certain lot of land. The deed recites that it is made and entered into between Andrew M. Manning of the one part and his wife, Sarah J. Manning, of the other part. The habendum and tenendum clause is as follows: “To have and to hold the above-described property unto her, the said Sarah J. Manning, for her sole and separate use during her natural life, free from the debts, liabilities, contracts, or control of her present
There is a great wealth of authority on the subject of the execution of powers, and a study of the numerous eases tends rather to bewilderment in perception than to clearness in conception of the real principle running through them. The earliest reported case on the subject is that of Sir Edward Olere, to be found in 6 Coke, 17, which holds that a will can not operate as an execution of a power unless it refers to the power or the subject of it, or unless
It is said that the strict technical rule obtains in this State; and
Coming closer to the substance of the question now before us: Mrs. Manning recites in her deed that the consideration of the property sold is $1,500. The property is described as “being the property conveyed by A. M. Manning to Sarah J. Manning by deed dated the seventh day of September, eighteen hundred and sixty-six.” The deed purports to convey the fee-simple title, and contains a general covenant of warranty. The petition alleges that the consideration alleged in the deed as being paid for the land was the full value thereof, and the demurrer admits this fact. Mrs. Manning’s deed is not fairly susceptible of any other interpretation than that it was intended to execute her power of sale over the fee. In the first place, it refers to the conveyance which created the power. In this respect there is a vital distinction between the case now in hand and the Holder and Buice cases, supra. In the deed from her husband Mrs. Manning is given a life-estate, with power of disposition of the fee; and when she undertook to convey the fee, expressly referring to the deed giving her power so to do, she impliedly referred to the power. After conveying the fee-simple title, she covenants to defend that title against the world. To construe the deed as conveying only her life-estate is to attribute to her the absurdity of charging herself with a liability upon her covenant when there was not the slightest obligation to take upon herself such a responsibility.
There is another point of differentiation between the case at bar and the cases in the 94 and 96 Ga. Neither of these cases dealt with a sale by a life-tenant, who in the same capacity had a right to sell the fee, but they dealt with a case where a life-tenant was also executor or guardian; in other words, the grantor in those cases owned the interest in his individual right and the power of sale in a representative capacity. In the present case Mrs. Manning owned the life-estate coupled with the power of disposition of the fee; and the question is whether her deed indicates her intention to convey only the life-estate or the entire fee. As we have pointed out, her deed discloses, by a reference to the source of her title, and by her conveyance of a fee and warranting the title
Judgment reversed.