TODD v. WILLIFORD et al.

Supreme Court of Georgia1929-12-11No. No. 7303

169 Ga. 543

Summary · law.co

Holding. The court affirmed the judgment for the defendants, holding that Narcissa's deed to her daughter Levanah Pearl effectively conveyed Narcissa's entire interest in the property, both present and future, and that Narcissa's subsequent deed to her son J. N. Todd was therefore ineffectual to pass any title.

A dispute arose over ownership of land that J. A. Todd conveyed by deed to his wife Narcissa and daughter Levanah Pearl. The deed granted each grantee a qualified interest that would pass entirely to the survivor upon the other's death. Narcissa later executed a separate deed purporting to convey the property to her son, J. N. Todd. The central questions concerned whether Narcissa held an interest capable of being conveyed and whether her subsequent deed to her son was valid.

The court held that under the original deed, each grantee acquired a vested present interest combined with a contingent future interest dependent on survivorship. Because the contingency pertained to the event of survival rather than the identity of the person taking, such contingent interests were legally assignable and devisable. Critically, when Narcissa executed her deed to Levanah Pearl before possessing a clear individual interest in the property, any interest she later acquired would automatically pass to Levanah Pearl's heirs rather than revert to Narcissa. Consequently, Narcissa's subsequent attempt to convey the property to her son J. N. Todd was ineffective. Additionally, the jury could properly find that a family settlement agreement among the children after their father's death allocated the disputed land to Levanah Pearl, and that J. N. Todd, who witnessed the deed from his mother to his sister, had notice of its contents.

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

Key issues

Whether a contingent interest dependent on survivorship is assignable and devisable
Whether a grantor's subsequently acquired interest passes to the original grantee despite initial lack of present interest
Whether an ambiguous deed language sufficiently conveys both present and future interests
Whether a family settlement agreement constitutes valuable consideration

Procedural posture

J. N. Todd appealed after the trial court sustained special demurrers to his petition and the jury returned a verdict in favor of the defendants Williford and others on the merits.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Gilbert, J.

1. The court did not err in sustaining the special demurrers to the petition.

2. Under the deed of J. A. Todd to his wife, Narcissa J., and his daughter, Levanah Pearl, the grantees took a qualified or base fee, the title of each being defeasible on dying before the death of the other grantee; that is, the survivor of the two took the interest of both in fee simple. Curles v. Wade, 151 Ga. 142 (106 S. E. 1), and cit.; Dean v. Wall, 154 Ga. 637 (115 S. E. 78).

3. . Each of the grantees, under the deed, took a certain and vested interest for life and a contingent interest thereafter, the contingency depending upon survivorship; and therefore the contingency is not as to the person, but as to the event. Such a contingent interest is devisable and assignable. Morse v. Proper, 82 Ga. 13 (8 S. E. 625); Collins v. Smith, 105 Ga. 525 (31 S. E. 449); Sumpter v. Carter, 115 Ga. 893 (42 S. E. 324, 60 L. R. A. 274); see also Slappey v. Vining, 150 Ga. 792 (105 S. E. 353); Bradshaw v. Estill, 157 Ga. 171, 179 (121 S. E. 385).

4. The Civil Code (1910), § 4117, declares: “A bare contingency or possibility can not be the subject of sale, unless there exists a present right in the person selling, to a future benefit; so a contract for the sale of goods to be delivered at a future day, where both parties are aware that the seller expects to purchase himself to fulfill his contract, and no skill and labor or expense enters into the consideration, but the same is a pure speculation upon changes, is contrary to the policy of the law, and can be enforced by neither party.” The provision that “a bare contingency or possibility can not be the subject of sale, unless there exists a present right in the person selling, to a future benefit,” does not apply to the sale of an interest in real estate where there is a contingent interest, the contingency being as to the event and not as to the person, as in this case. For a case where there was an attempt to convey a bare possibility, see Daily v. Springfield, 144 Ga. 395 (87 S. E. 479, Ann. Cas. 1917D, 943).

5. Where one executes a warranty deed to another, purporting to convey title to property when the grantor owns no interest in the property described in the conveyance, but subsequently does acquire an interest, the subsequently acquired interest immediately inures to the benefit of the grantee in his deed. Whether or not Nareissa J. Todd owned any salable interest in the land described in her deed to Levanah Pearl, on the death of the latter, whatever interest, if any, she subsequently acquired immediately inured to the heirs of Levanah Pearl, and not to Nareissa J. It follows that the deed from Nareissa J. to her son, J. N. Todd, was ineffectual to convey any title possessed by -Nareissa J. Todd either before or after the execution of the latter’s deed to her daughter, Levanah Pearl. Northington-Munger-Pratt Co. v. Farmers Gin &c. Co., 119 Ga. 851 (47 S. E. 200, 100 Am. St. R. 210); Isler v. Griffin, 134 Ga. 192 (4) (67 S. E. 854).

6. Construing the deed of Nareissa J. Todd to her daughter, Levanah Pearl, as a whole, it was sufficient to convey her entire interest in the land, both present and contingent. In one clause the deed recited that it sold and conveyed “all of her one-half undivided interest” in the land, but in the same conveyance the deed also recited the following: “It is the intention of this paper to convey all of the property described herein to the party of the second part, the title to pass immediately,” but reserving the enjoyment of certain possession and uses during the natural life of the grantor. As stated above, if any doubt exists as to the soundness of this ruling, the grantor in that deed, for herself and her heirs and assigns, is estopped from claiming any interest in the property.

7. The evidence authorized a finding by the jury that J. N. Todd, plaintiff in error, had notice of the deed from Nareissa J. to Levanah Pearl Todd, and also of its contents. Admittedly he was an attesting witness.

8. The jury was also authorized to find, as set up by the defendants, that after the death of the father, J. A. Todd, all of the children, including plaintiff, in order to dispense with an administration of the estate of the deceased, and to distribute his property amicably, held a meeting and entered into an agreement and contract setting apart to each child a portion of the estate, and that the land in the present controversy, which had previously been conveyed by deed from J. A. Todd to his wife Nareissa and his daughter Levanah Pearl, was to be the property of Levanah Pearl. Such an agreement and contract rested upon a valuable consideration; that is, a family settlement. Broderick v. Reid, 164 Ga. 474, 482 (139 S. E. 18).

9. Applying- the foregoing principles, the verdict for the defendants was supported by evidence. None of the special grounds of the motion for a new trial show error. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur.