Dunbar & Co. v. Mize

Jackson, Chief Justice. 1. This case turns mainly on the single question, does the following deed confer a separate estate on Mrs. Mize: “State op Georgia — Sumter Comity. ‘ ‘ This indenture, made on the seventh day of October, in the year of our Lord eighteen hundred and sixty-five, between Charles De Waal, of the county of Sumter, and Rebecca J. Mize of the same (she being his mother-in-law): Witnesseth that the said Charles De Waal, as well for and in consideration o£ the love and esteem which he hath and beareth towards said Rebecca J. Mize, as also for the better maintenance, livelihood and support of her, the said Rebecca J. Mize, hath given, granted, aliened, enfeoffed and confirmed, and by these presents doth give, grant, alien, enfeoff and confirm unto the said Rebecca J. Mize, her heirs and assigns, the following parcels of land, to-wit: lot number two hundred and nine (209;, and lot number two hundred and twelve (212), lying and being in the twenty-seventh district of said county aforesaid, together with all and singular the appurtenances thereto belonging to her, the said Rebecca J. Mize, her heirs and assigns, to the only proper use and behoof of the said Re [132] becca I. Mize, her heirs and assigns forever. And the said Charles De Waal, for himself, his heirs, executors and administrators, doth covenant and agree to •and with the said Rebecca J. Mize, her heirs and assigns, that they shall and lawfully may, from time to time and at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, enjoy the aforesaid premises, lands and tenements hereby granted and confirmed, free, clear and fully discharged, or well and sufficiently saved, kept harmless and indemnified of firm aid against allformer and other gifts, grants, bargains, sales, etc., and against all former and other titles whatsoever had, done or suffered, or to be had, done or suffered by him, -the said Charles De Waal, his heirs and assigns, or any other person or persons. In witness whereof the said Charles De Waal hereunto set his hand and seal the day and year first above written. [Signed] Charles De Waal, [l. s.] “ Signed, sealed and delivered in th¿ presence of us: J. G. Q. Stanford, S. S. Douglass, Wm. H. Brewer, J. P. “ Georgia — Sumter County. Clerk’s office, Superior Court, recorded in book 0, page 474, this April 1st, 1867. A. G. Ronaldson, Clerk.” We think that it does. She was the mother-in-law, and a married mother-in-law, of the donor. The consideration is his love and esteem for her, and the gift is for her “ better maintenance, livelihood and support.” Moreover it is to her “ only proper use and behoof.” Besides, he covenants and agrees that she “shall peaceably and quietly have, hold, use, occupy, possess and enjoy ” the premises. Moreover, De Waal bought the property from Mize, the husband, for value paid him; why should he give it back to her, which in effect was to him then, in 1865, if no words are in the deed creating a separate estate ? He bought it the first of October and made the conveyance to Mrs. Mize on the 7th of the same month. Reading together the two deeds strengthens the above construction, which the words themselves authorize. See 16 Ga., 528. Hill on. Trustees, 420; 2 Bright’s Husband and Wife, 210; 29 Amer. Dec., 101; 2 Kent’s Com., 162; Clancy on Rights of Married Women, 15, 30; Code; §2307. 2. The questions of fraud or no fraud, and of notice to the mortgagees of the deeds, were fully presented to the [133] jury by the court; the jury passed upon them, the presiding judge approved the finding; and we do not in such cases interfere. Judgment affirmed.