80 Ga. 154 | Ga. | 1887
J. H. White, administrator, brought ejectment against Lewis Hopkins, the defendant in error; and on the trial thereof the jury found in favor of the plaintiff. A motion. for a new trial was made- by the defendant upon the several-grounds mentioned therein, which was granted by- the court, below; and the plaintiff excepted and brings the case here for review.
.'The only question for us to determine in this case is, the proper construction of the paper offered in evidence .by the defendant below, and ruled out by the court. It is a paper in the nature and form of a deed, made on the 11th of February, 1882, betweenLemuel Hopkins, the intestate of the plaintiff in error, and Lewis Hopkins, both of Madison county; the consideration of the- deed or paper being for the services of Lewis Hopkins, bis wife and children, “.in taking all necessary care of his person and dwelling-house, and doing his cooking, washing and other necessary things to be done in housekeepi ng, taking care of the stock on the plantation and carrying on the farm of said Lemuel Hopkins, and making all necessary repairs on the same.’’ For these considerations, the deed recites that he has
“granted, bargained, sold, aliened, conveyed and confirmed, untó the said Lewis Hopkins, his heirs and assigns, all that tract of land (107 acres, described in the instrument), to have and to hold the said bargained premises, with all the rights and appurtenances thereunto*156 appertaining, to tho-only proper use, benefit and behoof of the said Lewis Hopkins, his heirs, executors, administrators and assigns, in-fee simple, subject to the before mentioned services of the said Lewis Hopkins and his wife and children, and the title to the above' described tract of land to still remain in the said Lemuel Hopkins for and during his lifetime, and at his death to immediately vest in the said Lewis Hopkins in case he and his family faithfully perform their part of the contract; but in case the said Lewis Hopkins and his family and his wife and children fail to carry out their obligation, then and in that event title is not to vest in said Lewis Hopkins, but to remain in said Lemuel Hopkins and his heirs and assigns. And the said Lemuel Hopkins the said bargained’ premises unto the said Lewis Hopkins, his heirs, executors and administrators, and against all and every person or persons, shall and will warrant and forever defend, by virtue of these presents.”
Signed, sealed and delivered in the presence of two witnesses; one of them a justice of the peace.
It is in the form of a deed; it commences as deeds ordinarily commence, — “ this indenture,” etc.; it recites a valuable consideration, the services of Lewis Hopkins, his wife and children, for and during the lifetime of the said Lemuel- Hopkins, in taking care of his person, etc.; and for these services, he recites that he has granted, bargained, sold, aliened, conveyed and confirmed, unto the said Lewis
But it was argued that the words in the habendtcm clause, “that the title to the above described tract of land” should “ still remain in the said Lemuel Hopkins for and during his lifetime, and at his death immediately vest in the said Lewis Hopkins,” etc., shows that it was not to tako effect until after his death. We do not agree with this construction. We think that the words used in the habendum clause are simply a reservation of a life estate in the grantor. He had already conveyed the title to the land to the grantee; and he could not pass the title info the grantee and reserve it in himself at the same time. It was competent for him to reserve a life estate in the land, and to retain possession of the same until his death. It was competent for him to convey an estate to the grantee upon a condition subsequent, to be defeated in the event that the condition was not complied with. These words make this instrument defeasible, subject to be defeated upon the failure of the grantee to perform his part of the contract. To give the paper this construction, the whole of the instrument will stand, and the intention of the grantor will thus be carried out. To construe it as a will, the intention of the grantor would be defeated, because it cannot be set up as a will, having only two witnesses.
Upon this subject and sustaining these views, see 8 Kelly, 460; 4 Ga. 75 ; 6 Ga. 526; 15 Ga. 103; 29 Ga. 677; 22
In 17 Ga. 234, the words were, “ bargained, sold and conveyed, and by these presents do bargain, sell and convey to the said David, his heirs and assigns,” a certain negro girl, “ to be delivered to the said David at my death, and not before.” This was held “ to be to all intents and purposes a sale for a valuable consideration, the seller reserving to himself a life estate in the property.” See also 13 Ga. 515.
Judgment affirmed.