Slay v. George

Evans, P. J. (After stating the foregoing facts.) 1. In her original petition the plaintiff sought a partition of the estate of her uncle in the hands of the defendants. Her action was brought more than ten years after the death of her uncle. The statute of limitations is not applicable to actions to recover realty; and as the petition did not disclose an adverse title by prescription to the land, the court retained the petition as one for a partition of realty. Lane v. Lane, 87 Ga. 268 (13 S. E. 335). The allegations with respect to the personalty owned by petitioner’s uncle and the defendants’ connection therewith are very vague and indefinite; but if treated as sufficient, the plaintiff is barred by the statute of limitations. No fraud or concealment by the defendants is alleged that would suspend the statute under the Civil Code (1910), § 4380. Davis v. Boyett, 120 Ga. 649 (48 S. E. 185, 66 L. R. A. 258, 102 Am. St. R. 118, 1 Ann. Cas. 386); Anderson v. Foster, 113 Ga. 370 (37 S. E. 426). 2. Objection was made to the reception in evidence of the trust deed from Sophie McBurney et al. to Emerson H. George, trustee, referred to in the statement of facts. One of the purposes for which the defendants offered this deed was to establish prescriptive title in themselves, as operative to deny a recovery to the plaintiff’s intestate, although the proof might sustain her allegation that she was the only child of Dr. Lawson E. George and as such entitled to one sixth interest in the estate of Calvin George. One reason urged against the admission of the deed for this purpose was that it did not purport to convey anything more than the makers’ undivided interest in Calvin George’s estate. The makers do not declare in the instrument that they are the sole heirs at law, as was done in the deed before the court in Street v. Collier, 118 Ga. 470 (45 S. E. 294). In the stating clause of the deed the signers describe themselves as “we, the undersigned heirs at law of said deceased, to wit, Sophie E. McBurney of New York County, New York, Charles E. George, Millard George, Emerson H. George, Calvin May George.” This is an express declaration that the makers are heirs at law of Calvin George, but these words of description are not exclusive of the idea that there are any other heirs; neither do they import that these signers represent that they are the only heirs. The granting clause is that the signers “do hereby give, grant, and convey all the right, title, and interest of [775] all and each of us in and to the estate of Calvin George, deceased, . . so that neither the said heirs at law before mentioned, nor any other person claiming under them, shall at any time have, claim, or demand any right, title, or interest in the aforesaid estate as against said trustee.” The estate granted operates only upon the interest of the signers in the estate of Calvin George, and the granting clause purports to convey only the title of those heirs who signed the deed. But it is urged that the unsigned will, which by reference is incorporated as a part of the deed, demonstrates that the whole estate of Calvin George was intended to pass and did pass under the deed. The argument for this contention is, that, inasmuch as the deed confers on the grantee as trustee the same powers and restricts him to the same limitations as the will placed on him as executor, had it been signed and probated, it was intended that he was to deal with the entire estate, and that the real purport of the deed was not to convey a fractional interest. This contention is not sound. The grantors recognized that the unsigned will was inoperative to convey title; they further asserted that it omitted a beneficiary, who by the deed was to take. The incorporation of the unsigned will did not enlarge the quantity of the estate purported to be granted, but merely conferred on the trustee the powers named in the will as having been given to the executor. Courts will not interpret a deed by some tenants in common as operating on all the tenants in common, where the parties to. the deed do not so declare. The deed was relevant evidence to show that those heirs at law who signed it had conveyed their- interests to the grantee named therein; but the court in his instructions gave the deed effect as ^ color of title, affording a basis foy prescription against the plaintiff’s intestate. As we have pointed out, the deed purports to .convey only the interests of the signers; and if the evidence should disclose that the plaintiff’s intestate was an heir at law of Calvin George, she would not be cut off by any prescriptive title of the defendants, based on this deed as color. The evidence relating to the good faith of the signers as bearing on the question of prescription was irrelevant. 3. Other assignments relate to matters involved in the preceding ruling, or such as are not likely to occur on the next trial, and do not require any ruling thereon. Judgment reversed. By five Justices, all concurring.