habendum clause in Georgia

1949It is not insisted by counsel for the plaintiffs that this expression would be sufficient to create an estate on condition, or an estate with a conditional limitation, for they fully recognize that such an expression would not be sufficient for that purpose, and the soundness of the authorities relied upon by counsel for the defendant which hold to that effect, viz., Hollomon v. Board of Education of Stewart County, 168 Ga. 359 ( 147 S. E. 882 ); Huger v. Protestant Episcopal Church, 137 Ga. 205 ( 73 S. E. 385 ); Moss v. Chappell, 126 Ga. 196 ( 54 S. E. 968 ); Heyward v. Hatfield, 182 Ga. 373

1936In Hollomon v. Board of Education of Stewart County, 168 Ga. 359 (supra), it was held: “The conveyance by warranty deed to the Board of Education of Stewart County of an acre of land in consideration of $5 to the grantor in hand paid, the land ‘to be used by said Board of Education as a public school for whites/ with the habendum clause, ‘To -have and to hold the same for the uses aforesaid forever/ does not create an estate upon condition subsequent or an estate with a conditional limitation, (a) Such conveyance did not convey a mere easement. (&) An implied trust did not arise in favor of th

1949To have and to hold said tract or parcel of land” to the railroad company, “for railroad purposes, forever in fee simple.” It is true that there is no warranty clause in this instrument, but the habendum clause does contain the words “forever in fee simple.” While, as held by this court in the Johnson case, supra, the use of the words, “forever in fee simple,” does not demand the construction that this instrument conveys to the grantee title to this land, and not a mere easement therein (Bale v. Todd, 123 Ga. 99 (2), 50 S. E. 990 ; Atlanta, Birmingham & Atlantic Ry.

1949To have and to hold said tract or parcel of land” to the railroad company, “for railroad purposes, forever in fee simple.” It is true that there is no warranty clause in this instrument, but the habendum clause does contain the words “forever in fee simple.” While, as held by this court in the Johnson case, supra, the use of the words, “forever in fee simple,” does not demand the construction that this instrument conveys to the grantee title to this land, and not a mere easement therein (Bale v. Todd, 123 Ga. 99 (2), 50 S. E. 990 ; Atlanta, Birmingham & Atlantic Ry.

1949It is not insisted by counsel for the plaintiffs that this expression would be sufficient to create an estate on condition, or an estate with a conditional limitation, for they fully recognize that such an expression would not be sufficient for that purpose, and the soundness of the authorities relied upon by counsel for the defendant which hold to that effect, viz., Hollomon v. Board of Education of Stewart County, 168 Ga. 359 ( 147 S. E. 882 ); Huger v. Protestant Episcopal Church, 137 Ga. 205 ( 73 S. E. 385 ); Moss v. Chappell, 126 Ga. 196 ( 54 S. E. 968 ); Heyward v. Hatfield, 182 Ga. 373

1949It is not insisted by counsel for the plaintiffs that this expression would be sufficient to create an estate on condition, or an estate with a conditional limitation, for they fully recognize that such an expression would not be sufficient for that purpose, and the soundness of the authorities relied upon by counsel for the defendant which hold to that effect, viz., Hollomon v. Board of Education of Stewart County, 168 Ga. 359 ( 147 S. E. 882 ); Huger v. Protestant Episcopal Church, 137 Ga. 205 ( 73 S. E. 385 ); Moss v. Chappell, 126 Ga. 196 ( 54 S. E. 968 ); Heyward v. Hatfield, 182 Ga. 373

1949It is not insisted by counsel for the plaintiffs that this expression would be sufficient to create an estate on condition, or an estate with a conditional limitation, for they fully recognize that such an expression would not be sufficient for that purpose, and the soundness of the authorities relied upon by counsel for the defendant which hold to that effect, viz., Hollomon v. Board of Education of Stewart County, 168 Ga. 359 ( 147 S. E. 882 ); Huger v. Protestant Episcopal Church, 137 Ga. 205 ( 73 S. E. 385 ); Moss v. Chappell, 126 Ga. 196 ( 54 S. E. 968 ); Heyward v. Hatfield, 182 Ga. 373

1949It is not insisted by counsel for the plaintiffs that this expression would be sufficient to create an estate on condition, or an estate with a conditional limitation, for they fully recognize that such an expression would not be sufficient for that purpose, and the soundness of the authorities relied upon by counsel for the defendant which hold to that effect, viz., Hollomon v. Board of Education of Stewart County, 168 Ga. 359 ( 147 S. E. 882 ); Huger v. Protestant Episcopal Church, 137 Ga. 205 ( 73 S. E. 385 ); Moss v. Chappell, 126 Ga. 196 ( 54 S. E. 968 ); Heyward v. Hatfield, 182 Ga. 373

1949Co. v. Coffee County , 152 Ga. 432 , supra), such words are "potent" when considered in connection with the other terms of the instrument in inducing us to hold that this instrument conveyed the title to this strip of land to the grantee.

1949Co. v. Coffee County, 152 Ga. 432 , supra), such words are “potent” when considered in connection with the other terms of the instrument in inducing us to hold that this instrument conveyed the title to this strip of land to the grantee.

1949It is not insisted by counsel for the plaintiffs that this expression would be sufficient to create an estate on condition, or an estate with a conditional limitation, for they fully recognize that such an expression would not be sufficient for that purpose, and the soundness of the authorities relied upon by counsel for the defendant which hold to that effect, viz., Hollomon v. Board of Education of Stewart County, 168 Ga. 359 ( 147 S. E. 882 ); Huger v. Protestant Episcopal Church, 137 Ga. 205 ( 73 S. E. 385 ); Moss v. Chappell, 126 Ga. 196 ( 54 S. E. 968 ); Heyward v. Hatfield, 182 Ga. 373

1949It is not insisted by counsel for the plaintiffs that this expression would be sufficient to create an estate on condition, or an estate with a conditional limitation, for they fully recognize that such an expression would not be sufficient for that purpose, and the soundness of the authorities relied upon by counsel for the defendant which hold to that effect, viz., Hollomon v. Board of Education of Stewart County, 168 Ga. 359 ( 147 S. E. 882 ); Huger v. Protestant Episcopal Church, 137 Ga. 205 ( 73 S. E. 385 ); Moss v. Chappell, 126 Ga. 196 ( 54 S. E. 968 ); Heyward v. Hatfield, 182 Ga. 373

1943Ward v. Ward, 176 Ga. 849 ( 169 S. E. 120 ).

1943Ward v. Ward, 176 Ga. 849 ( 169 S. E. 120 ).

1931Co., 129 Ga. 377 ( 58 S. E. 862 ), it was held: “Where the granting clause of a deed set out a grant to a woman, ‘her heirs and assigns/ and the habendum clause was, ‘to have and to hold . . unto the said [woman], her heirs and assigns forever, in fee simple, and after her death to such child or children as she may have by [a named man], share and share alike/ such deed created a life-estate in the woman, with remainder to such children as she might have by the man named.” In that case it was also held that the children in life at the time of the execution of the deed took under the deed.

1931Co., 129 Ga. 377 ( 58 S. E. 862 ), it was held: “Where the granting clause of a deed set out a grant to a woman, ‘her heirs and assigns/ and the habendum clause was, ‘to have and to hold . . unto the said [woman], her heirs and assigns forever, in fee simple, and after her death to such child or children as she may have by [a named man], share and share alike/ such deed created a life-estate in the woman, with remainder to such children as she might have by the man named.” In that case it was also held that the children in life at the time of the execution of the deed took under the deed.

2014Keith, 157 Ga. at 5 ; see also 2 Patton and Palomar on Land Titles § 345 (3d ed.) (“The role of the habendum was to repeat the name of the grantee with a statement of the estate conveyed, and to what use.”). 7 And habendum clauses with the language “forever, in fee simple” are often included on form deeds provided in practice treatises.

1999In Dept. of Transp. v. Knight, 238 Ga. 225 ( 232 SE2d 72 ) (1977), this Court determined that a similar deed conveying to a governmental authority “and their successors in office so much land as to make a right of way for [a roadway],” and which contained the habendum clause — “ ‘to have and to hold the said conveyed premises in fee simple’” — established that the grantor intended to grant an estate in fee simple rather than a conditional estate.

1999In Dept. of Transp. v. Knight, 238 Ga. 225 ( 232 SE2d 72 ) (1977), this Court determined that a similar deed conveying to a governmental authority “and their successors in office so much land as to make a right of way for [a roadway],” and which contained the habendum clause — “ ‘to have and to hold the said conveyed premises in fee simple’” — established that the grantor intended to grant an estate in fee simple rather than a conditional estate.

1934In Butt v. Jackson, 148 Ga. 672 ( 97 S. E. 854 ), it was held: “A deed executed in 1908, granting certain land to the wife of the grantor and his children by her born and to be born, their heirs and assigns/ upon the expressed consideration of the love and affection the grantor bore to his wife and his children by her, and $500 paid to the grantor, conveyed an absolute fee in common to the wife and her children by the grantor, then in life.” It follows that the court erred in sustaining the motion to dismiss on general demurrer based upon the ground that the plaintiff showed no title in hersel

1934In Butt v. Jackson, 148 Ga. 672 ( 97 S. E. 854 ), it was held: “A deed executed in 1908, granting certain land to the wife of the grantor and his children by her born and to be born, their heirs and assigns/ upon the expressed consideration of the love and affection the grantor bore to his wife and his children by her, and $500 paid to the grantor, conveyed an absolute fee in common to the wife and her children by the grantor, then in life.” It follows that the court erred in sustaining the motion to dismiss on general demurrer based upon the ground that the plaintiff showed no title in hersel

1931Ewing v. Shropshire, 80 Ga. 374 .

1931A case very similar in its facts to the present was Henderson v. Sawyer, 99 Ga. 234 ( 25 S. E. 312 ), where this court held: “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 Baker. 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.” In that case the deed f

1931A case very similar in its facts to the present was Henderson v. Sawyer, 99 Ga. 234 ( 25 S. E. 312 ), where this court held: “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 Baker. 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.” In that case the deed f

1930Mallery v. Dudley, 4 Ga. 52, 61 .

1929Co., 120 Ga. 516 ( 48 S. E. 188 ), the conveyance Avas of “all of the land necessary for a road-bed and other earth to construct said railroad;” and the habendum clause was to said “ Gainesville & Dahlonega Railroad Company for railroad purposes, forever in fee simple.” The consideration of the conveyance was the benefit and advantage accruing to the grantor from the construction of the railroad, and the sum of $5.

1929Co., 120 Ga. 516 ( 48 S. E. 188 ), the conveyance Avas of “all of the land necessary for a road-bed and other earth to construct said railroad;” and the habendum clause was to said “ Gainesville & Dahlonega Railroad Company for railroad purposes, forever in fee simple.” The consideration of the conveyance was the benefit and advantage accruing to the grantor from the construction of the railroad, and the sum of $5.

1927Silman, administrator as aforesaid,-in consideration of the sum of,” etc., “has granted, . . and sold, and by these presents does grant, . . sell,” etc., “unto John S. Weatherly for the use, benefit, and advantage in trust for said Bhoda A. Weatherly for life, for her separate use, and on her decease to such child or-children, or the representative of her child or children, the issue of the marriage of the said John S. and Rhoda A., as she may leave in life, . . an undivided half interest in and to a tract of land,” etc. And in the habendum clause is this language: “To have and to hold the abo

1927Silman, administrator as aforesaid,-in consideration of the sum of,” etc., “has granted, . . and sold, and by these presents does grant, . . sell,” etc., “unto John S. Weatherly for the use, benefit, and advantage in trust for said Bhoda A. Weatherly for life, for her separate use, and on her decease to such child or-children, or the representative of her child or children, the issue of the marriage of the said John S. and Rhoda A., as she may leave in life, . . an undivided half interest in and to a tract of land,” etc. And in the habendum clause is this language: “To have and to hold the abo

1923Co., 129 Ga. 377 ( 58 S. E. 862 ), it was held: “Where the granting clause of a deed set out a grant to a woman, Tier heirs and assigns,’ and the habendum clause was To have and to hold . . unto the said [woman], her heirs and assigns forever, in fee simple, and after her death to such child or children as she may have by [a named man], share and share alike,’ such deed created a life-estate in the woman, with remainder to such children as she might have by the man named.” See also Rollins v. Davis, 96 Ga. 107 ( 23 S. E. 392 ); Collinsville Granite Co. v. Phillips, 123 Ga. 830 (51 S. E. 666);

1923Co., 129 Ga. 377 ( 58 S. E. 862 ), it was held: “Where the granting clause of a deed set out a grant to a woman, Tier heirs and assigns,’ and the habendum clause was To have and to hold . . unto the said [woman], her heirs and assigns forever, in fee simple, and after her death to such child or children as she may have by [a named man], share and share alike,’ such deed created a life-estate in the woman, with remainder to such children as she might have by the man named.” See also Rollins v. Davis, 96 Ga. 107 ( 23 S. E. 392 ); Collinsville Granite Co. v. Phillips, 123 Ga. 830 (51 S. E. 666);

1923Co., 129 Ga. 377 ( 58 S. E. 862 ), it was held: “Where the granting clause of a deed set out a grant to a woman, Tier heirs and assigns,’ and the habendum clause was To have and to hold . . unto the said [woman], her heirs and assigns forever, in fee simple, and after her death to such child or children as she may have by [a named man], share and share alike,’ such deed created a life-estate in the woman, with remainder to such children as she might have by the man named.” See also Rollins v. Davis, 96 Ga. 107 ( 23 S. E. 392 ); Collinsville Granite Co. v. Phillips, 123 Ga. 830 (51 S. E. 666);

1923Co., 129 Ga. 377 ( 58 S. E. 862 ), it was held: “Where the granting clause of a deed set out a grant to a woman, Tier heirs and assigns,’ and the habendum clause was To have and to hold . . unto the said [woman], her heirs and assigns forever, in fee simple, and after her death to such child or children as she may have by [a named man], share and share alike,’ such deed created a life-estate in the woman, with remainder to such children as she might have by the man named.” See also Rollins v. Davis, 96 Ga. 107 ( 23 S. E. 392 ); Collinsville Granite Co. v. Phillips, 123 Ga. 830 (51 S. E. 666);

1923Co., 129 Ga. 377 ( 58 S. E. 862 ), it was held: “Where the granting clause of a deed set out a grant to a woman, Tier heirs and assigns,’ and the habendum clause was To have and to hold . . unto the said [woman], her heirs and assigns forever, in fee simple, and after her death to such child or children as she may have by [a named man], share and share alike,’ such deed created a life-estate in the woman, with remainder to such children as she might have by the man named.” See also Rollins v. Davis, 96 Ga. 107 ( 23 S. E. 392 ); Collinsville Granite Co. v. Phillips, 123 Ga. 830 (51 S. E. 666);

1923Co., 129 Ga. 377 ( 58 S. E. 862 ), it was held: “Where the granting clause of a deed set out a grant to a woman, Tier heirs and assigns,’ and the habendum clause was To have and to hold . . unto the said [woman], her heirs and assigns forever, in fee simple, and after her death to such child or children as she may have by [a named man], share and share alike,’ such deed created a life-estate in the woman, with remainder to such children as she might have by the man named.” See also Rollins v. Davis, 96 Ga. 107 ( 23 S. E. 392 ); Collinsville Granite Co. v. Phillips, 123 Ga. 830 (51 S. E. 666);

1916Co., 140 Ga. 519 ( 79 S. E. 138 ), it was held: “Where a written agreement was entered into between two corporations, whereby one was to execute a deed to the other upon certain conditions, and subsequently a deed in fee simple to the land referred to in the agreement was executed, reciting in the preamble thereof that whereas by agreement between the parties the grantor agreed to convey to the grantee certain land on ‘certain conditions which have since' been complied with,’ but the habendum clause of the deed contained no such conditions, the conditions of the agreement were merged in the co

1916Co., 140 Ga. 519 ( 79 S. E. 138 ), it was held: “Where a written agreement was entered into between two corporations, whereby one was to execute a deed to the other upon certain conditions, and subsequently a deed in fee simple to the land referred to in the agreement was executed, reciting in the preamble thereof that whereas by agreement between the parties the grantor agreed to convey to the grantee certain land on ‘certain conditions which have since' been complied with,’ but the habendum clause of the deed contained no such conditions, the conditions of the agreement were merged in the co

1914The distinction between an estate on condition and a limitation which determines the estate upon the happening of an event is thus drawn in Norris v. Milner, 20 Ga. 563 : “A limitation in a deed determines the estate when the period of limitation arrives, without entry or claim.

1914Parker v. Smith, 140 Ga. 789 ( 80 S. E. 12 ).

1914Parker v. Smith, 140 Ga. 789 ( 80 S. E. 12 ).