148 Ga. 137 | Ga. | 1918
M. L. Gross, as administrator of the estate of Mourning. Whitfield, brought suit in Washington superior court against Mrs. Mary Price and Wells Whitfield, for the recovery of 200 acres of land described in plaintiff’s petition.' The plaintiff introduced his application, as administrator of the estate of Mourning Whitfield, for leave to sell the premises in dispute as the property of his intestate, and the order of the court of ordinary of Washington county authorizing such sale. Over the objection that the same was a will, and- not a deed, the plaintiff introduced in evidence the following writing;
“State of Georgia. Washington County, February 22nd, 1864. After the death of my father, Bryan A. Whitfield, and my mother, Martha Whitfield, his wife, and the said Bryan E. D. Whitfield, of the same county and State aforesaid, give unto my beloved sister, Mourning G. Whitfield, the land and plantation whereon my father and mother now lives, being two hundred acres, more or less, to raise and educate her children, and not subject to any husband or future husband’s debts; and also give her all the stock of any kind bn or belonging to the place where my father and mother lives, and I also give my sister, Mourning G. Whitfield, all the
H. B. Yeal, one of the subscribing witnesses, testified to the execution and delivery of the writing by Bryan E. D. Whitfield to his sister, Mourning Whitfield, and that Bryan Whitfield, the father of Bryan E. D. Whitfield, and Martha Whitfield, the mother of Bryan E. D. Whitfield, were in the actual possession of the premises described in the writing at the time of its execution, i. e., the same land described in the plaintiff’s petition. Bryan Whitfield survived his wife Martha, and died about 1879. Mourning Whitfield died four or five years before the institution of this suit. At the time of the execution of the instrument Bryan Whitfield and Shelman W. Whitfield, a son of Bryan Whitfield and a brother of Bryan E. D. Whitfield, were present. Shelman W. Whitfield re-, ferred to the property embraced in the instrument, being the same property involved in the present dispute, before the war, during the war, and after the war, as the property of Bryan E. D. Whitfield. He recognized the property as being the property of Bryan E. D. Whitfield, and after the war recognized the property as the property of Mourning G. Whitfield by virtue of the gift to her by Bryan E. D. Whitfield. Mourning G. Whitfield went into the possession of the property in 1864, that is, she retained the possession of the property and claimed it under under the deed from Bryan E. D. Whitfield, from 1864 to the date of her death. Wells Whitfield, one of the defendants, claimed 'under Mrs. Mary Price, the real defendant. The latter introduced in evidence a grant from the State of Georgia to Bryant Whitfield, embracing the premises in dispute, dated October 10, 1835, and a deed from Bryant Whitfield to Shelman Whitfield, conveying the premises in dispute, dated January 10, 1838. The deed was first recorded on January 28, 1842, and again recorded on July 27, 1893. She next introduced a deed from Shelman W. Whitfield to Mourning G. Whitfield, conveying the premises in dispute, which deed, with an addendum thereto, and the date of record thereon, is as follows:
The oral evidence introduced by the defendants tended to show that Mary Price was the only sister of Mourning G- Whitfield, and that Mourning G. Whitfield said that she claimed the land in dispute under the deed from Shelman Whitfield. The court directed a verdict for the plaintiff for the premises. The defendant filed a motion for new trial, which was overruled, and she excepted.
1. It is insisted that the instrument executed by Bryan E. D. Whitfield to the plaintiff’s intestate is not a deed, but that it is testamentary in character. Our Civil Code declares: “No particular form of words is necessary to constitute a will; and in all cases to determine the character of an instrument, whether it is testamentary or not, the test is the intention of the maker, from
3. It is insisted that the deed is void for uncertainty of description. “The description of the property conveyed in a deed is sufficiently certain when it shows the intention of the grantor, as to what property is conveyed, and makes its- identification practicable.” Andrews v. Murphy, 12 Ga. 431 (1). See Shiels v. Lamar, 58 Ga. 591 (1), 593; Jennings v. National Bank of Athens, 74 Ga. 782 (1 a), 787; Mayor &c. of Chauncey v. Brown, 99 Ga. 766, 771 (26 S. E. 763). This test has been consistently applied in this State. Indeed our Civil Code declares: “No prescribed form is essential to the validity of a deed to lands or personalty. If sufficient in itself to make known the transaction between the parties, no want of form will invalidate it.” § 4183. If the deed affords a key by which the property conveyed can be identified, it is sufficient. Swint v. Swint, 147 Ga. 467 (94 S. E. 571). When the deed from Bryan E. D. Whitfield to plaintiff’s intestate was offered in evidence, the only objection urged was that the same was not a deed, but was a will. However it is insisted that the plaintiff did not show title in himself to the premises in dispute, and therefore that the direction of the verdict for the plaintiff was erroneous. The evidence shows without dispute that the plaintiff’s intestate
Judgment affirmed.