Perkins v. Perkins

147 Ga. 122 | Ga. | 1917

Beck, J.

1. Among other points made by defendant’s demurrer, it was urged that the deed attached to plaintiffs’ petition shows on its face that it conveys an absolute fee-simple title to Alice G. Perkins; and further, that the estate created under the deed at*126tached to the petition is an estate tail, and for that reason vests a fee-simple title in Alice G. Perkins, the first taker. This ground of the demurrer was without merit. The conveyance to “Alice G. Perkins, and to the heirs of her body after her death,” vested a life-estate in the first named, with remainder over to her children, the plaintiffs in this case. Under the Civil Code, § 3661, a deed to a woman, and the heirs of her body after her death, conveys a life-estate to the first taker, with remainder over to her children. King v. McDuffie, 144 Ga. 318 (87 S. E. 22).

2. Certain other grounds of the demurrer are based upon the contention that the description in the deed from Ann L. Ward to Alice G. Perkins is so vague and indefinite as to render the deed void. This contention is based upon the ruling in the case of Huntress v. Portwood, 116 Ga. 351 (42 S. E. 513), where it was held that a conveyance of a tract of land of irregular shape, containing a stated number of acres, “more or less,” and bounded on north, on east, and on south by lands of named owners, and on west by other lands of the grantor, does not with sufficient definiteness set forth or indicate how the lands sought to be conveyed shall he •cut off from the entire tract, and that consequently the deed is void, for the identity of the portion of the tract to be cut off could not be ascertained and established without resorting to extrinsic proof as to the secret and undisclosed intention of the maker with regard thereto. Whether that is controlling in the present case is a question not entirely free from difficulty; but after giving the matter careful consideration, we are of the opinion that it is not controlling. In the case of Huntress v. Portwood, the land conveyed was an irregularly shaped piece of land; in the present case that is not so, but it is alleged that it is a parallelogram. Moreover, in a conveyance by a. prior owner of this land, namely, G. L. Jackson, who executed a deed on the 12th day of January, 1897, to Ann L. Ward, a tract of land embracing that now in controversy was conveyed to the grantee, the deed of conveyance last referred to containing the following description of the land: “That tract or parcel of land lying and being in the village of Perkins, County of Burke, State of Georgia, 61st district, G. M., containing four and one quarter (4 1/4) acres, more or less, bounded on the north and east by lands of G. L. Jackson, on the south by lands of Miss M. S. Lake and public road, west by lands of C. I. Bodgers, run*127ning from C. I. Bodgers’ corner east seven chains and eighty hundredths, extending back five chains and forty links, parallel with C. I. Bodgers’ line.” Subsequently, on October 6, 1909, Ann L. Ward, the grantee in the last-mentioned deed, executed a deed conveying one and one fourth (1 1/4) acres of the tract of four and one fourth acres to Alice G. Perkins, which deed contained the following description of the 11/4 acres conveyed: “That tract or parcel of land lying and being in the 1635th district of Jenkins County, Georgia, and in the village of Perkins, Ga., containing one and one fourth (1 1/4) acres of land, and bounded as follows: on the north by lands of Mrs. Julia E. Perkins, on the east by lands of Mrs. Alice G. Perkins, on the south by lands of Lake estate and public road, and on the west by lands of A. Barefield.” On October 7, 1908, Alice G. Perkins executed a deed to J. S. Lake conveying both the 3-acre tract and the 1 1/4-apre tract. It is in evidence that this last-named conveyance to J. S. Lake made up the tract containing 4 1/4 acres covered by the deed from G. L. Jackson to Ann L. Ward, and this was again separated into two component tracts by the separate conveyances from Ann L. Ward to Alice G. Perkins. By a comparison of these conveyances and the lots of land, it is not necessarily impossible to ascertain and fix the boundaries of each tract by the aid of extrinsic proof, without resorting to the secret and undisclosed intentions of the grantors in the deeds. While certain paragraphs of the lengthy amendment to the petition might have been successfully attacked by special demurrer, the court should not have stricken the entire amendment upon motion in the nature of a general demurrer; nor should the petition as amended have been dismissed.

Judgment reversed.

All the Justices concur. .