92 Ga. 233 | Ga. | 1893
1. On the 28th day of October, 1839, Robert Westmoreland executed and delivered to his son, Reaves-Westmoreland, a paper of which the following is a copy:
“Georgia, Habersham County.
“ This instrument of writing is written for the purpose of showing the condition of a certain piece of land that Igivemy son, Joseph Westmoreland, conditionally, and the condition is, that he may have all privilege of cultivation himself, and all he makes may be subject to his debts or demands of other persons, and when I my*234 self am dead, the land shall be his; further, I do not allow any other person to cultivate the land lout him or Reaves Westmoreland, my elder son. It is a piece of land [here follows the description]. Joseph has sold his gift to Reaves, which I agree to in the manner as I intended to Joseph. Privilege of timber I claim as long as I live. When I am dead and gone, I intend the land to be his land, except he should die without any heirs, then in that event the land falls back as it was before the gift. Witness this 28th of October, 1839.”
It was signed by the maker, and attested by two witnesses. On the 4th day of February, 1861, Robert Westmoreland conveyed the land described in the above instrument to another son, Edmond Westmoreland, by a deed containing the following recital: “ it being a parcel of land that I gave my son, Joseph Westmoreland, a lifetime lease on certain conditions, and conditions not complied with, and the said Joseph Westmoreland sold the said [land] to my son Reaves Westmoreland my lifetime.” Edmond Westmoreland died during the war. His heirs at law, claiming under the deed to him from Robert Westmoreland, brought an action on the 4th of March, 1892, to recover the land in question from the representatives of Reaves Westmoreland, who had been dead about a year and half when suit was brought. It appears from the evidence that Robert Westmoreland had been dead fifteen or twenty years at the time of the trial, and that Reaves Westmoreland took possession of the land in dispute immediately after the execution of the instrument above copied, and remained in possession up to the time of his death. The evidence was conflicting as to how Reaves Westmoreland held during the life of his father, there being some proof tending to show that he only claimed a lease for the father’s lifetime, and other proof to the effect that he claimed to own the land absolutely. Be this as it may, it is quite clear that after the death of his father,
2. As will have been seen, the instrument in question contained the following sentence: “Joseph has sold his gift to Reaves, which I agree to in the manner as I intended to Joseph.” After the word “ Reaves,” in that sentence, the following words, viz : “ for the consideration of 125 dollars in hand paid,” had been interlined, and then a pen drawn through this interlineation. Although it appears that the interlineation was both made and erased after the instrument was executed, all this was immaterial, for it really made no difference upon what consideration Joseph sold to Reaves. The evidence shows that the real consideration was a horse, saddle, bridle and bear-skin. There were two other slight alterations in the instrument, in the sentence beginning “When I am dead and gone,” etc., one changing the word “their” to “his,” and the other changing the word “ they ” to “ he.” It does not appear when they were made, but as these alterations properly served to render the instrument consistent with itself according to its import in the main body of it, the presumption is that they were made before the instrument was executed. Judgment affirmed.