New v. Fennell
New v. Fennell
Opinion of the Court
Maude Brantley New sued Talmadge Fennell for an improved lot of land in the City of Dublin, fronting on Bellevue Avenue, which the defendant purchased from Senie Bertha Lord on October 6, 1964. Her petition as amended alleges that she and Senie Bertha Lord were daughters of C. W. Brantley who died in 1933 while a resident of Laurens County; that C. W. Brantley on Decern
1. On demurrer thereto pleadings are construed most strongly against the pleader and in the light of their omissions as well as their averments, and if an inference unfavorable to a party claiming a right under such pleadings may be fairly drawn from the facts alleged therein, such inference will prevail in determining the rights of the party. Ed Smith & Sons, Inc. v. Mathis, 217 Ga. 354 (1) (122 SE2d 97). Here the pleader alleges that a deed which C. W. Brantley executed and delivered in 1902 to Senie Bertha Lord, his daughter, .was materially altered. Respecting such alterations the original petition alleges that petitioner “does not know the identity of the person or persons who altered said deed.” A subsequent amendment alleges: “Your petitioner does not know the date and time when such alteration was made.” Without striking these allegations, subsequent amendments allege that such alterations were made after the execution and delivery of such deed to the grantee, Senie Bertha Lord, and that they were not made by the grantor C. W. Brantley. These allegations are cleaiiy inconsistent and contradictory and on application of the rule that on demurrer thereto a pleading will be construed most strongly against the pleader, we hold that the amended petition must be construed as alleging that petitioner does not know the identity of the person or persons who allegedly altered said deed nor the date and time when it was allegedly altered; hence the amended petition is insufficient to show that the deed here involved was materially altered after it was executed and delivered by C. W. Brantley to his daughter Senie Bertha Lord.
2. The deed from C. W. Brantley to his daughter Senie Bertha Lord was executed in 1902 and recorded in the deed records of Laurens County on January 24, 1903, more than 62 years prior to the institution of this litigation. As it appears of record, such deed conveyed the property sued for to Senie Bertha Lord for and during her natural life and after her death to her children. Where, as here, there is a grant of a remainder to children as a class, children in esse at the time of the execution of the deed take a vested remainder which opens for the purpose of letting in afterborn children. Milner v. Gay, 145 Ga. 858 (2) (90 SE 65). And since the deed from C. W. Brantley conveyed a vested remainder interest in the children of Senie Bertha Lord and they died before the time arrived for possessing the estate, their children or other heirs at law of them were entitled to take the vested remainder interest of such children on the death of the life tenant. Ward v. Ward, 176 Ga. 849, 850 (169 SE 120). While the amended petition alleges that none of the children of Senie Bertha Lord were in life at the time of her death, it nevertheless fails to allege that they were not survived by children or other heirs at law who would be entitled to take their vested remainder interest in the property sued for. This being an action to recover land, it is a well-settled principle of law that the plaintiff must recover on the strength of her own title and not on the weakness of the defendant’s. Having alleged that none of the children of Senie Bertha Lord survived her, it was necessary, in order to show that the property reverted to. the estate of C. W. Brantley, for petitioner to allege that such children of Senie Bertha Lord were not survived by children or other heirs at law.
3. For reasons stated in the two preceding divisions, the trial judge properly sustained the demurrer to the amended petition.
Judgment affirmed.
Reference
- Full Case Name
- NEW v. FENNELL
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- 1 case
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- Published