Seaboard Air-Line Railway v. Simmerville

Fish, C. J., and Lumpkin, Atkinson, and Hill, JJ.,

concurring specially. We concur in the judgment in this ca'se, because we feel bound by one or more former decisions of this court. The decision in Smith v. McWhorter, 123 Ga. 287, was rendered by five Justices, and therefore would not require the unanimous consent of the court to be overruled. But in the case of Overstreet v. Sullivan, 113 Ga. 891 (decided by six Justices), this court construed a deed very similar to the one now in question. In the published opinion the granting clause alone is quoted, and no reference is made to the habendum and tenendum clauses. But a reference to the original record shows that the deed then under consideration had substantially the same habendum and tenendum clauses as the one now before us. We can not now take up and discuss the various cases which have been decided by this court, construing deeds more or less similar to the one before us. But, as an original proposition, it might well be doubted whether, under the rule in this State providing for the construction of a deed in its entirety so as to harmonize all parts of it if practicable, a conveyance which declares that a trustee shall have and hold the property in trust for a married woman and her children could be declared not to create any trust for the children.