Henderson v. Sawyer

25 S.E. 312, 99 Ga. 234

Opinion

Simmons, C. J.

1. Since the adoption of the code, a mere repugnance in words will not authorize a court to hold that there is a real repugnance 'in a deed, and consequently to annul the latter of two inconsistent clauses therein, when the actual intention of the maker, viewing the instrument as a whole, can be arrived at without serious difficulty. Code, §2755; Thurmond v. Thurmond, 88 Ga. 182; Bray v. McGinty, 94 Ga, 192, and cases cited; Rollins v. Davis, 96 Ga. 107.

2. Accordingly where premises described in a deed were thereby “granted, bargained and sold” to a named person, “her heirs and assigns,” “to have and to hold unto her . . and the heirs she may have by” one Baker, her husband, “her Baber heirs,” “to them and their own proper use, benefit and behoof, forever in fee simple,” the effect of such deed was to convey the title to the grantee named and her three children in life when it was executed, as tenants in common. Judgment reversed.

Tke count granted a nonsuit upon tke ground tkat plaintiffs did not take -anything under tke deed, tke words in -the habendum being inconsistent witk the grant in the- premises do Mrs. Baker, and therefore void.

L. D. Moore, for plaintiffs. Ryals <& Stone, for defendant.