Beauchamp v. Fitzpatrick

65 S.E. 884, 133 Ga. 412, 1909 Ga. LEXIS 226

Opinion

Lumpkin, J.

The facts are sufficiently stated in the head-notes. It was contended that the deed conveyed a fee-simple title to the daughter of the grantor. That such was not the case if there were' children in esse when the conveyance was made is clearly shown by the decision in Plant v. Plant, 122 Ga. 763 (50 S. E. 961), and the cases there cited. If there were no children then in esse, the words, “children of her body” by her husband named, would be treated as words of limitation and fall within the rule in Ewing v. Shropshire, 80 Ga. 376 (7 S. E. 554). The petition failed to allege facts necessary to show that the petitioner had any interest in the land, or, if so, what it was. • A mere general allegation that the children of the grantor’s daughter by her husband were certain persons was not sufficient to show that they or any of them were in life when the conveyance was made. Nor was it enough to allege in general terms that the petitioner claimed a certain fractional interest and that certain other persons claimed other fractional interests. The deed under which they derived title, if at all, being set out, it was necessary for the plaintiff to show that he and his alleged cotenants took under the description contained in it. The petition failed to allege a ease entitling the petitioner to partition, and it was properly dismissed on demurrer. The other rulings in regard to the demurrer sufficiently appear from the headnotes.

Judgment affirmed.

All the Justices concur.