No. 3305 | Ga. | Jan 17, 1923
(After stating the foregoing facts.) The deed, under which both parties claim, is between Pickins Byrd and others, “ of the first part, and Camilla Mosley and the heirs of her body by Henry Tv Moslejr, . . of the second part.” This language appears in the statement of the parties to this instrument, and does not appear in the body of the deed. Standing alone, this language created a grant of the premises in dispute to “ Camilla Mosley and the heirs of her body by Henry T. Mosley,” and by the express language of the Civil Code (1910), § 3661, conveyed to the mother an absolute fee. Lane v. Cordell, 147 Ga. 100 (92 S.E. 887" court="Ga." date_filed="1917-06-14" href="https://app.midpage.ai/document/orme-v-tolbert-5581781?utm_source=webapp" opinion_id="5581781">92 S. E. 887). But as this language is found in that part of this instrument which names the parties thereto, it would not be controlling, if the language of the conveying and habendum clauses required a different construction and conclusion. The conveyance is “unto the said party of the second part, heirs and assigns.” The singular number is used in describing the party of the second part, and the reference here is clearly to Camilla Mosley. This constitutes a conveyance of the absolute fee to Camilla Mosley. Douglas v. Johnson, 130 Ga. 472 (60 S.E. 1041" court="Ga." date_filed="1908-03-28" href="https://app.midpage.ai/document/douglas-v-johnson-5576261?utm_source=webapp" opinion_id="5576261">60 S. E. 1041); Pace v. Forman, 148 Ga. 507 (97 S.E. 70" court="Ga." date_filed="1918-10-17" href="https://app.midpage.ai/document/pace-v-forman-5582434?utm_source=webapp" opinion_id="5582434">97 S. E. 70). The habendum clause is “to the only proper use, benefit, and behoof of the said parties of the second part, their heirs, executors, and administrators and assigns, in fee simple.” Who are the parties of the second part here referred to? To answer this question, we must look to the caption of the deed in which the parties thereto are named; and we find that they are “ Camilla Mosley and the heirs of her body by Henry T. Mosley.” The convenant of warranty is “ unto the said parties of the second part, her heirs, executors, and administrators and assigns.”
Counsel for plaintiffs in error refer to Gray v. Gray, 20 Ga. 804, Jackson v. Coggin, 29 Ga. 403, Hoyle v. Jones, 35 Ga. 40 (89 Am. D. 273), Tharpe v. Yarbrough, 79 Ga. 382 (4 S.E. 915" court="Ga." date_filed="1888-01-26" href="https://app.midpage.ai/document/tharp-v-yarbrough-5562724?utm_source=webapp" opinion_id="5562724">4 S. E. 915, 11 Am. St. R. 439), Ewing v. Shropshire, 80 Ga. 374 (7 S.E. 544" court="Ga." date_filed="1888-03-03" href="https://app.midpage.ai/document/hewitt-v-tumlin-5562929?utm_source=webapp" opinion_id="5562929">7 S. E. 544), Plant v. Plant, 122 Ga. 763 (50 S.E. 961" court="Ga." date_filed="1905-05-15" href="https://app.midpage.ai/document/sims-v-price-5574289?utm_source=webapp" opinion_id="5574289">50 S. E. 961), and Turner v. Barber, 131 Ga. 444 (62 S.E. 587" court="Ga." date_filed="1908-10-13" href="https://app.midpage.ai/document/turner-v-barber-5576485?utm_source=webapp" opinion_id="5576485">62 S. E. 587), to sustain their contention that the mother and her children, under this deed, took said property as tenants in common. Suffice it to say, that in none of 'these cases were there grants to one and his or her heirs by a named person.
Hnder the stipulation between the parties to this cause, the judgment of the court below is to be affirmed if it be found that Camilla Mosley took an absolute fee in the premises in dispute, to the exclusion of her children in esse at the date of said conveyance. We find that she took such absolute estate.
Judgment affirmed.