Where a deed from a father conveys land to his daughter, and at her death to the heirs of her body, and not to be subject to her debts or to the debts of her husband, a child in esse at the time of the execution and delivery of such deed takes a vested remainder interest in such land, subject to be reopened and to take in after-born children of such grantee.
(a) Prescription does not begin to run in favor of a grantee under a deed from a life tenant, against a remainderman who does not join in the deed, until the falling in of the life estate by the death of the life tenant.
(b) The trial judge erred in overruling the plaintiffs' motion for a new trial.
No. 15462. JUNE 6, 1946. REHEARING DENIED JULY 5, 1946. This is a suit to recover land. Virgil J. Sikes, Walter G. Sikes, Robert E. Sikes, and Mrs. Annie Ruth Payne filed in Tattnall Superior Court, against C. M. Moxley, a petition, which as twice amended alleged substantially the following: The plaintiffs are the children of Mrs. L. A. Sikes, who died on May 8, 1942. On August 1, 1892, E. D. Cowart, who was the father of Mrs. L. A. Sikes and the grandfather of the plaintiffs, executed a deed wherein he conveyed to "L. A. Sikes, and at her death to the heirs of her body, and not to be subject to her debts or to the debts of her husband," a described tract of land containing 100 acres, in the 351st district G. M. of Tattnall County, known as the Wesley Cobb Old Homestead. L. A. Sikes went into possession and remained for a number of years, when in some way unknown to the plaintiffs she lost her interest in the land and the possession thereof. The plaintiffs are the only children and heirs of the body of Mrs. L. A. Sikes. The defendant is in possession of the land, and refuses to deliver the same to the plaintiffs or to pay them the profits therefrom. Each of them claims title to an undivided one-fourth interest in the land, being seized in fee under the provisions of the above deed. The petitioners prayed for process, service, and a recovery of the property with mesne profits. Attached to the petition was an abstract of title showing: (a) Possession in L. A. Sikes, under claim of title prior to March 19, 1892. (b) Warranty deed *Page 77 from L. A. Sikes to J. F. Bird, dated March 19, 1892. (c) Warranty deed from J. F. Bird to E. D. Cowart, dated April 1, 1892. (d) Warranty deed from E. D. Cowart to L. A. Sikes, dated August 1, 1892. Each of the deeds was duly recorded.
The defendant answered, denying material allegations of the petition, but admitting that he refused to deliver possession to the plaintiffs. Further answering, he averred substantially the following: His immediate predecessor in title, H. J. Mulling, acquired title as a purchaser in good faith, and went into possession in 1907. The defendant also acquired title in like manner and he and his predecessor have been in quiet, peaceable, continuous, adverse, and undisputed possession since 1907. The answer also averred that the value of improvements to the amount of $8450, made upon the land by the defendant and his predecessor, should, in the event legal title to the land should be found to be in the plaintiffs, be set off against the present value and mesne profits. The present value without the improvements was alleged to be $600. While the defendant's answer stated that it was filed subject to his demurrer, such demurrer was not brought up in the transcript of the record, and so far as appears, there was no ruling upon any demurrer.
D.C. Sikes testified in part for the plaintiffs: He was 78 years old. L. A. Sikes was his wife. She died on May 8, 1942, leaving four children, who are the plaintiffs in this case. She bought the old Wesley Cobb home place from Mr. Cobb in April or May, 1891, and went into possession in the fall of that year. She sold the place to Jeff Bird in the spring of 1892. In August of the same year her father, Ned Cowart, bought it from Jeff Bird and made her a deed to it. She remained in possession under the deed from her father from 1892 to 1898, at which time it was sold under an execution against her and others in favor of Statesboro Bank, and was bought by Chestnut and O'Neal. Mr. Newton went into possession and stayed there until Mr. Mulling bought it. He sold the place to the defendant, who has been in possession ever since. The plaintiffs lived near the property and knew that Mulling and the defendant were improving it. None of the plaintiffs told either Mulling or the defendant that they had a claim to the land. When the defendant was figuring on buying the place at foreclosure sale, he asked if anything would ever be said about the old deed, and the *Page 78 witness told him that he did not know. L. A. Sikes' youngest child was born in 1907. The witness then testified in detail in reference to the location of the Wesley Cobb place.
The plaintiffs introduced in evidence the deeds set forth in their abstract of title.
Virgil Sikes, one of the plaintiffs, called by the defendant as an adverse witness, testified: He was fifty-three years old. He remembered living on the place, and moved away when he was about six years old.
A. D. Eason testified for the defendant: He did some surveying for Mr. Sikes and the defendant, and made a plat that represents the land in dispute. The land surveyed contained 100 acres. It might be a few square feet off, but very little.
The defendant testified: He was in possession of the tract of land sued for and had been for 17 years. He bought it from New York Life Insurance Company. Before he bought the land, it was owned by his father-in-law, Mr. Mulling. Mulling and the defendant have been in possession for 43 years. If he had been notified of the plaintiffs' claim, he would not have bought the land. The witness heard what Mr. Sikes testified about notifying him when he was figuring on buying the property at foreclosure sale. That is not true. The plaintiffs all knew that the defendant was making improvements on the property. The southwest corner where Mr. Eason started the survey was not a Wesley Cobb corner. It was put there in 1917.
Several witnesses for the defendant testified that the reputation of D.C. Sikes was bad and that they would not believe him on oath.
The defendant introduced in evidence, without objection, the following deeds: (a) Sheriff's deed to G. M. Williams, dated August 2, 1898, showing sale of the land in question as the property of L. A. Sikes under an execution in favor of the Statesboro Bank. (b) Loan deed from H. J. Mulling and Marvin Mulling to Old Dominion Trust Company, conveying a tract of land including the land in dispute to New York Life Insurance Company. (c) Deed under power of sale to the same tract of land, dated December 6, 1927, from H. J. Mulling and Marvin Mulling to New York Life Insurance Co. (d) Deed from New York Life Insurance Company to the defendant, dated December 6, 1927. Each of the deeds was duly recorded. *Page 79
There was uncontroverted evidence showing that the Wesley Cobb place was surrounded by lands that were owned by the defendant, but there was a conflict as to where the corners of the 100 acres in question were located.
The jury returned a verdict in favor of the defendant. The plaintiffs' motion for a new trial as amended was overruled, and the case comes to this court for review upon the plaintiffs' exceptions to that judgment. This case involves a proper construction of the deed from E. D. Cowart, the father of L. A. Sikes, dated August 1, 1892, by which he conveyed the land in question to "L. A. Sikes, and at her death to the heirs of her body, and not to be subject to her debts or to the debts of her husband."
This court has held that a grant to A and the heirs of her body, or words of similar import, operates to vest the fee-simple title in A. Stamey v. McGinnis, 145 Ga. 226 (88 S.E. 935);Lane v. Cordell, 147 Ga. 100 (92 S.E. 887); Pace v.Forman, 148 Ga. 507 (97 S.E. 70); Scott v. Harley,152 Ga. 537 (110 S.E. 285); Southwell v. Purcell, 172 Ga. 739 (158 S.E. 588). This rule would not apply, however, where as here a less estate has been carved out, and the term, "heirs of her body," or words of similar import are used in connection with a limitation over in remainder, and the words of remainder establish a class who shall take after the expiration of the life estate. Singer v. First National Bank Trust Co., 195 Ga. 269,272 (24 S.E.2d 47).
In King v. McDuffie, 144 Ga. 318 (87 S.E. 22), certain persons as children of a deceased woman filed a petition against her administrator, seeking, among other things, to enjoin the defendant from selling certain land. They claimed under a deed which conveyed the land to their mother "and the heirs of her body after her death." The defendant claimed that the land belonged in fee simple to the intestate. The court ruled that the deed conveyed a life estate to the first taker; with remainder over to her children. See, to the same effect, Perkins v.Perkins, 147 Ga. 122 (92 S.E. 875); Banks v. Morgan,163 Ga. 468 (136 S.E. 434); Pearre v. McDonald, 168 Ga. 752 (149 S.E. 44); Bristol Savings Bank v. *Page 80 Nixon, 169 Ga. 282 (150 S.E. 148); Beasley v. Calhoun,178 Ga. 613 (173 S.E. 849); Rainey v. Spence, 185 Ga. 763 (196 S.E. 416).
On the trial of the instant case, which occurred on April 17, 1945, Virgil Sikes, who was one of the children of L. A. Sikes, testified that he was 53 years old, which would have made him 3-1/2 months old when the deed was executed on August 1, 1892. The youngest child was born in 1907, and the evidence is silent as to the birth of the other two children. It thus appears that at least one child was in esse when the deed was executed to "L. A. Sikes, and at her death to the heirs of her body, and not to be subject to her debts or to the debts of her husband."
Accordingly, L. A. Sikes, the mother of the plaintiffs, took a life estate in the property, and the remainder estate vested in the child or children in esse at the time of the execution of the deed, subject to be reopened to let in after-born children.Milner v. Gay, 145 Ga. 858 (2) (90 S.E. 65); Nixon v.Nixon, 192 Ga. 629 (15 S.E.2d 883).
Counsel for the defendant in error contend, however, that the judgment should not be reversed, since the jury chose to believe the defendant's testimony in preference to that of the plaintiffs, the veracity of whose principal witness was attacked, and the evidence submitted to the effect that he was not worthy of belief on oath was sufficient to have warranted the jury in finding that his testimony had been wholly discredited and was not worthy of belief.
While the answer of the defendant denied that the life tenant went into possession of the property, no evidence was offered in support of such averment. It is also true that the jury would have been authorized to believe the witnesses who swore that they would not believe the plaintiffs' principal witness on oath, but there was other unimpeached evidence on the question of possession of the life tenant. One of the children who held a remainder interest testified that he remembered living on the property, and that he moved away when he was about six years old. This testimony accords with the evidence of the defendant, which shows that the property was sold in 1898 to satisfy an execution against the life tenant and others.
The uncontroverted evidence shows that the life tenant died on May 8, 1942, and the suit was instituted on March 29, 1943. While *Page 81 all the evidence shows that the defendant and his predecessors had been in open adverse possession for 43 years, "prescription does not begin to run in favor of a grantee under a deed from a life tenant, against a remainderman who does not join in the deed, until the falling in of the life estate by the death of the life tenant." Mathis v. Solomon, 188 Ga. 311 (4 S.E.2d 24), and citations. By analogy, the same principle would apply where the entire fee was attempted to be conveyed by a sheriff's deed.
Considering all the evidence introduced by both sides, it would have been sufficient to enable the jury to definitely identify the land in dispute. Applying the above principles of law to the facts of the present case, the evidence did not authorize a finding in favor of the defendant, and the trial judge erred in overruling the plaintiffs' motion for a new trial.
Judgment reversed. All the Justices concur.