95 Ga. 267 | Ga. | 1895
It appears from the record, that in 1859 Mrs. Sophia J. McBea, and her children then in life, as well as such others as might be born to her thereafter, were entitled to certain property in the State of South Carolina, the interest of the mother being a life-estate, with remainder to the children. A decree was rendered by a court of competent jurisdiction in that State, directing that the property be sold and the proceeds paid to trustees in Georgia for Mrs, McBea and her children, to be reinvested for the use of the mother for life, and at her death, for the benefit of the children. The proceeds of the South Carolina property, or a portion of the same, were in 1860 invested in lands lying in Bulloch county, Ga., embracing the tract now in controversy, the deed of conveyance being made to Neal A. McBea, “trustee for S. J. McBea and her issue.” Afterwards, one Samuel F. Sanders obtained a fraudulent judgment against Neal A. McBea as trustee, the land was sold under an execution issued from that judgment, and one Bichard F. Sanders became the purchaser and went into possession. In 1869
It is evident that the theory upon which the plaintiffs’ counsel rested their right to recover, was, that they were remaindermen and could not bring suit until after the death of their mother. The view entertained by the trial judge doubtless was, not only that the plaintiffs were not remaindermen, but also that they had no interest whatever in the land. After thorough consideration we are of the opinion that neither of these theories was exactly correct. We agree with the court that the plaintiffs were not remaindermen, but we think that under the decree rendered in 1875 they were tenants in common with their mother.
Whatever may have been the proper construction of the conveyance made in 1860 to Neal A. McRea as trustee for Mrs. McRea “and her issue,” when considered
The result is, that the deed from Mrs. McRea to Lanier could convey no greater interest than her undivided
In view of the theories entertained, respectively, by counsel for the plaintiffs and by the trial judge, there was no occasion for the defendant to show title in himself by prescription, or otherwise present a complete defense to the action. The case has not been properly tried, but in the light of this opinion, its full merits will doubtless be developed at the next hearing. It appears that the youngest of the children was born about the year 1861. Whether or not the title which we think was vested in them by the decree of 1875 has been defeated by the lapse of time, will necessarily depend, upon such further facts as may be brought to light when the case is tried again. Judgment reversed.