Griffith et al. v. Douglas, executor

Supreme Court of Georgia1904-07-13

120 Ga. 582

Summary · law.co

Holding. An instrument bearing all the formal characteristics of a warranty deed, properly attested and delivered, conveys present title to the grantee even if it contains language postponing the right of possession until the grantor's death; such an instrument should be treated as a conveyance passing title in the present rather than as a testamentary document. The judgment is affirmed.

A widow executed an instrument in 1892 that contained all the formal characteristics of a deed—including attestation, delivery, warranty language, and proper execution. The document transferred real and personal property to her nephew, but included language stating the transfer would not take effect until after her death, at which point the nephew would take possession. After the nephew died (before the grantor), the grantor later executed a will in 1895 that purported to revoke an earlier instrument and bequeathed the same property to other parties, claiming she had been deceived into executing the original document.

The trial court treated the 1892 instrument as a valid deed conveying a present estate with possession postponed until the grantor's death, and directed a verdict for the plaintiff claiming rights under it. The defendants argued the instrument was testamentary in nature and therefore invalid as a deed, and sought to introduce the later will and testimony regarding the grantor's alleged deception. The court rejected these arguments and excluded the contradictory evidence.

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

Key issues

Whether a deed-form instrument with delayed possession is a present conveyance or a testamentary disposition
Effect of language postponing possession until grantor's death on the validity and characterization of a deed
Admissibility of evidence regarding grantor's intent or claims of deception in construing a formal deed

Procedural posture

Defendants challenged a directed verdict for the plaintiff, arguing the disputed instrument was testamentary rather than a valid deed and seeking to introduce a later will and testimony of the grantor's alleged deception.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, C. J.

1. An instrument in all respects in the form of a warranty deed, attested as a deed, and delivered to the party named as grantee, although it contains the words “that this deed is not to go into effect until after the death of the party of the first part, hut at the death of said party of the first part the party of the second part is to take possession,” should be treated, not as a will, hut as a conveyance passing title in presentí, with right of possession postponed until the death of the grantor. West v. Wright, 115 Ga. 2,77; Brice v. Sheffield, 118 Ga. 128, and cit.; Watkins v. Nugen, 118 Ga. 372.

2. The above-named cases and others to similar effect are, upon a review thereof, affirmed. Judgment affirmed.

All the Justices concur.

The defendants contended that the following instrument, on which the plaintiff based his claim of title, was testamentary, and not a conveyam.ee passing title in presenti.

“ State of Georgia, Morgan County. This indenture, made the 4th day of August, in theyear of our Lord one thousand, eight hundred and ninety-two, between Mrs. Cynthia D. Head, of the County of Morgan and State of Georgia, of the first part, and A. S. N. Few, of the County of Morgan and State of Georgia, of the second part, witnesseth: that the said party of the first part, for and in consideration of the sum of ten dollars and the natural love and affection she bears to said A. S. N. Few, in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed, and confirmed, and by these presents do grant, bargain, sell alien, convey, and confirm unto the said party of the second part, heirs and assigns, all the following described property : [the land in dispute, describing it] and also all the personal property of every description, except household furniture and bedding, that shall be left on said plantation above described at the time of the death of the party of the first part, and it is expressly understood that this deed is not to go into effect until after the death of the party of the first part, but at the death of said party of the first part the party of the second part is to take possession. To have and to hold the said above granted and described property, with all and singular the rights, members, and appurtenances thereunto appertaining, to the only proper use, benefit, and behoof of the said party of the second part, his heirs, executors, administrators, and assigns, in fee simple; and the said party of the first part the said bargained property above described, unto the said party of the second part, his heirs, executors, administrators, and assigns, against the said party of the first part, her heirs, executors, administrators, and assigns, and against all and every other person or persons, shall and will and does hereby warrant and forever defend,, by virtue of these presents. In witness whereof the said party of the first part has hereunto set her hand and affixed her seal, and delivered these presents, the day and year first above written: •

“ Signed, sealed and delivered C. D. Head (L. S.) in presence of us: J. T. Hester, L. H. Carter, N. P. ex-off. J. P.”

At the trial it was admitted that if this instrument was a deed, the plaintiff was entitled to recover. The court held that the paper was a deed conveying a present estate, and directed a verdict for the plaintiff. To this the defendants excepted. It was also assigned as error that the court allowed the plaintiff to testify as follows: A. S. N. Few was the nephew of Mrs. Cynthia D. Head, and lived with her several years prior to his death. Mrs. Head was a widow and childless, and had been so several years prior to the execution by her of the paper hereinbefore set out to A. S. N. Few. After the death of A. S. N. Few [which, it was admitted, occurred prior to the death of Mrs. Head] the witness found said paper in said Few’s trunk in the dwelling-house of Mrs. Head on the land in dispute. The defendants objected to this testimony as irrelevant, and as not admissible to aid in the construction of the papen in question, or to supply a cause or motive for its execution. The defendants excepted also to-the refusal of the court to admit in evidence the last will of Cynthia D. Head, bequeathing to them the property in dispute, dated October 18, 1895, and legally probated and recorded, a part of which was as follows : “ Item 1st. I hereby expressly revoke a certain will made by me on the 4th day of August, 1892, and signed in the presence of J. T. Hester and L. H. Carter, N. P. & J. P., wherein I gave to my nephew, A. S. N. Few,[the land in dispute, describing it] and also ‘all the personal property of every description (except household furniture and bedding) that shall be left on said plantation at the time of my death.’ I was deceived into the execution of said will, did not know its contents, did not have it read over to me, never read the paper myself.”

Cited by counsel: Civil Code, §§ 3252, 3254, 3602, 3673, 3675; Ga. B. 2/31; 3/460, 485, 569;4/52, 75; 6/516; 8/450; 10/506; 13/515; 17/234, 267; 20/707; 22/460,472, 491, 495; 28/98, 330; 29/677; 31/720; 32/589; 41/212; 51/239; 52/531; 55/68, 369; 56/513; 62/629; 66/127; 69/617; 73/97; 74/614; 80/154; 83/787; 89/290 ; 90/650; 91/564; 92/233; 94/159; 96/423; 105/86, 87; 107/436; 108/739, -740; 112/214; 115/277; 118/129; 2 Chit. Bl. 417, 241; 4 Kent’s Com-. 489; 1 Wms. Ex. 91; 1 Jarm. Wills, 26; 27Am. & Eng. Ene. L. (1st ed.) 124; 9 Id. (2d ed.) 90-1, 139-40; 1-Bouv. L. Diet. 627; Black’s L. Diet. 555; 24 Ala. 122 ; 28 -Ala/309 ; :S8 Ala. 26 ;59 Ala. 349; 86 Ala. 302; 94 Ala. 275; 106 Ala. 131; 21 Ark. 526; 50 Ark. 367; 16 Conn. 474; 106 Ind. 580; 114 Ind. 179; 135 Ind. 232; 140 Ind. 533; 77 Iowa 549; 95 Ky. 346; 25 Minn. 520 ; 30 Miss. 91; 34 Miss. 533 ; 35 Miss. 197; 56 Hun (N. Y.), 639; 29 N. C. 92; 94 N. C. 648; 19 Ore. 296; 14 Pa. St. 489; 51 Pa. St. 126; 165 Pa. St. 10; 2 Strob. Eq. (S. C.) 343; 9 Rich. Eq. (S. C.) 303; 10 Rich. Eq. 217; 3 S. D. 382; 32 Tenn. 648; 78 Tenn. 73; 82 Tenn. 316; 23 Tex. 653; 46 Tex. 556 ; 5 Tex. Civ. App. 466; 7 Tex. Civ. App. 40; 13 S. W. (Tex.) 1018; 34 S. W. 774.

Foster & Butler, for plaintiffs in error.

George & Anderson, contra.