Plemmons et al. v. Sharp et al.

Supreme Court of Georgia1923-10-09No. No. 3600

156 Ga. 571

Summary · law.co

Holding. The deed provision making the conveyance null and void upon failure to perform care obligations created a condition subsequent; the grantor established both breach of that condition and valid re-entry, and the jury instructions properly allowed the finder of fact to conclude the grantee forfeited rights under the deed. The judgment was affirmed.

A property owner conveyed land by warranty deed to a grantee on the condition that the grantee provide care, food, clothing, fuel, and nursing services to the grantor and his wife for their lifetimes. The deed explicitly stated that failure to perform these obligations would render the conveyance null and void. The court determined that this language created a condition subsequent, giving the grantor a right to re-enter and reclaim the property if the grantee failed to meet the care obligations.

At trial, evidence demonstrated that the grantee had voluntarily abandoned performance of the required care duties before the grantor's death. The court properly instructed the jury that voluntary discontinuation of services—whether initiated by the grantee or acquiesced to after the grantor's dissatisfaction—would invalidate the deed and defeat any claim by the grantee to retain the property. Because the grantor successfully demonstrated non-performance and re-entry through uncontroverted evidence, the trial court's jury instructions were appropriate and not prejudicial to the grantee's position.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a warranty deed clause conditioning conveyance on lifetime care of grantor creates a condition subsequent
Whether voluntary abandonment of care duties by the grantee constitutes breach justifying grantor's re-entry
Whether jury instructions properly explained the effect of voluntary non-performance on the grantee's claim

Procedural posture

The case was a complaint for land tried before a judge in Fannin Superior Court in December 1922, with the jury authorized to find breach of the care condition and the grantor's lawful re-entry and possession.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Beck, P. J.

1. An owner of land conveyed it by warranty deed to a named grantee upon the express consideration and condition that the grantee should “ maintain, feed, clothe, and nurse ” the grantor and his wife during sickness, “and care for them with all necessary food and raiment that is needed, as well as with fuel, . -. during the life” of the grantor and his wife. And the recital of the consideration is immediately followed by this clause: “ And if this consideration is not carried out as set forth in this deedj then it is null and void and of no effect.” Held, that the provision as to avoidance created a condition subsequent; and where the grantee voluntarily failed or refused to comply with such condition, in the deed, the grantor had a right of re-entry for condition broken. Wilkes v. Groover, 138 Ga. 407 (75 S. E. 353).

No. 3600.

October 9, 1923.

Complaint for land. Before Judge Blair. Fannin superior court. December 9, 1922.

Thomas 4. Brotvn and B. L. Smith, for plaintiffs.

William Butt, for defendants.

2. The evidence submitted at the trial authorized the jury to find the condition broken and entry and possession by the grantor.

3. Where exception is taken to the admission of evidence, the ground in the motion for new trial assigning. error upon the admission of such evidence should show the name of the witness, and if it is not done the court will not pass upon this assignment, of error. Hunter v. State, 148 Ga. 566 (97 S. E. 523).

4. The court did not err in giving the following instructions to the jury: (a) “ Now, on the other hand, if these plaintiffs. for any reason of their own voluntarily abandoned their undertaking under this deed, then they would not be entitled to recover in the case. The duties put upon them under this deed would continue on down to the death of J. A. Callihan [the grantor]; and if the plaintiffs voluntarily discontinued the performance of these duties at any time prior to his death, that is, if they picked up and left him and ceased to perform their obligation under the deed, they would not be entitled to recover.” (6) “Now, the court instructs you further on this line, if J. A. Callihan became dissatisfied with this agreement, or became dissatisfied with the services of the plaintiffs here, and they acquiesced in his dissatisfaction and voluntarily moved away — voluntarily left there — voluntarily discontinued their services without compulsion or coercion on the part of J. A. Callihan, the deed would be invalid and • they would not be entitled to recover.”

5. The re-entry of the grantor having been shown by uncontroverted evidence, the failure of the court to instruct the jury as to the effect of a failure to re-enter, in connection with the instructions given above, did not injure the plaintiffs in the case.

6. The mere failure of the court to charge upon the effect of admissions, there being no written request for instructions upon that subject, does not require the grant of a new trial.

Judgment affirmed.

All the Justices concur.