34 S.E.2d 278 | Ga. | 1945
An instrument in the form of a warranty deed reciting a consideration is not testamentary in character by reason of the fact that it contains the following clause: "A life estate and interest is hereby reserved by the grantor herein, which she may enjoy the possession, profits, and otherwise use said land the same as if she owned the fee-simple title. At the death of the grantor the fee-simple title is to vest in the grantee herein named." Accordingly, the court did not err in granting an interlocutory injunction, on the application of the grantee thereunder, restraining subsequent grantees of a life-tenant in a lease of the timber on the land conveyed from cutting and removing such timber from the premises therein.
On the interlocutory hearing the case was submitted upon an agreed statement of facts, which was in substance as follows: The only question to be determined is one of law as to whether the petitioners or the defendants have a superior title to the timber, and it involves the construction of the deed from Mrs. S.E. Merchant to Vernon Thomas and Mrs. Mollie Purdom, dated March 10, 1939, and recorded March 21, 1939. The only title the petitioners have is by reason of this deed and another from the same grantor to Vernon Thomas and Lee S. Purdom, dated January 10, 1945. It was agreed that the defendant Horne had entered upon the land in dispute and had cut and removed therefrom 7000 feet of timber and 19 1/2 units of pulpwood. It was agreed that Lee S. Purdom was the sole surviving heir at law of Mrs. Mollie Purdom, deceased, Mrs. Mollie Purdom having died since the execution of the deed by Mrs. S.E. Merchant to Vernon Thomas and herself on March 10, 1939; and that Lee S. Purdom *398 stands in the same legal right as to such deed as would Mrs. Mollie Purdom were she alive. It was further agreed that the deed of March 10, 1939, was on a printed form; and that the description of the property and the reservation therein were written with a typewriter, the granting and habendum clause being part of the printed form. It was agreed that the judge might decide the case upon the petition, the deed referred to therein, and the lease referred to in the answer of the defendants, together with the defendants' answer, all of which were put in evidence. An interlocutory injunction was granted, and the defendants excepted, assigning error thereon. It is conceded that, if the instrument in the form of a deed, executed on March 10, 1939, is a valid deed, and the reservation therein is an ordinary life-estate, the defendants would have no right under their lease from the life-tenant to cut and remove the timber in question, and that the court did not err in granting the interlocutory injunction. The decisive question upon which the entire case turns is the proper interpretation of the reservation clause contained in that instrument. That clause expressly states that the reservation is a "life estate and interest," and reserves for the grantor stated rights in the property, to wit, "enjoy the possession, profits and otherwise use said land the same as if she owned the fee-simple title." This reservation is followed by the words: "At the death of the grantor the fee-simple title is to vest in the grantee herein named." The instrument is in the form of a deed and it names itself as an "indenture." It recites a consideration and contains the words, "granted, bargained, and sold," and the usual covenant of a warranty clause.
Counsel for the plaintiff in error contends that the instrument, by reason of the reservation clause, is testamentary in character, is therefore not a deed, and that the grantor therein had a right to convey the timber to the defendants subsequently to the date of that instrument, and cites in support of this contention, Symmes v. Arnold,
The reservation in the deed here involved recognizes that the grantor therein no longer holds the fee-simple title in the property described. It merely reserves to the grantor the right to enjoy the possession, profits, and use of the property. Construing the deed as a whole, it is clear that the grantor intended, by the statement that at her death the fee-simple title should vest in the grantee, merely that the property would not be longer encumbered by the *400
life-estate, and that the right of possession and use would thereupon vest in the grantee. Instruments in the form of a deed containing reservations very similar in meaning to that here found were held in the following cases to be deeds: Price v.Gross,
Judgment affirmed. All the Justices concur.