Kytle v. Kytle , 128 Ga. 387 ( 1907 )

Cobb, P. J.

(After stating the facts.)

1. The paper relied on by the plaintiff as a muniment of title was a deed, and not a will. West v. Wright, 115 Ga. 277; Griffith v. Douglas, 120 Ga. 582; Sharpe v. Matthews, 123 Ga. 794.

2. When the deed is construed in its entirety, it is manifest that it was the intention of the grantor to reserve a life-estate in the property and to convey to the grantee the remainder interest therein. The consideration for this conveyance, as expressed in. the deed, is twofold, — natural love and affection, and the support of the grantor. It is true that it is not stated in terms that this support is to continue during the lifetime of the grantor, but this, is to be inferred from the general character of the conveyance. If it had been the intention of the grantor that the consideration, should have been a support for a less time than his entire life, a specification to this effect would undoubtedly have been made a. part of the deed. It is manifest that the grantor did not intend that the grantee should enjoy the possession of the property until after his death, and it is to be inferred that the value of the property to the grantee at that time would be a sufficient consideration, for the support of the grantor for the remainder of his life. The rents, issues, and profits during the lifetime of the grantor belonged to him, to be used as he saw proper; the remainder interest conveyed to the grantee was to purchase a support for himself for the remainder of his life. When the grantee accepted the deed, with this covenant therein, he became bound by its terms. Atlanta etc. Ry. Co. v. McKinney, 124 Ga. 929. For a breach of this covenant the grantor could have brought suit in his lifetime; and if he died without bringing an action for that purpose, the right of action survived to the legal representatives of his estate. In an action brought by his legal representatives, the measure of damages would be the reasonable value of a'support to the grantor according to his circumstances and condition in life. McCardle v. Kennedy, 92 Ga. 198, and cit.

3. The answer in the nature of a cross-bill, which was filed by the defendants, who were all of the heirs at law of the grantor except the plaintiff, alleges that there was no administration npon the estate of the grantor, and that all of the defendants are of full age. The answer does not allege that there were no debts owing by the grantor. There was no demurrer to the answer. From the evidence it appears that the grantor, at the time of his death, did owe some debtp, apparently insignificant in amount, which had been paid by some of the defendants. His funeral expenses were also paid by some of the defendants. There was a motion made, during the trial, to rule out all of the evidence as to the value of the support of the grantor since December 27, 1898, the date of the deeds made by him to the children other than the plaintiff, and error is assigned upon the refusal to grant this motion, for three reasons, that the testimony is irrelevant, that the defendants have no right to recover the value of any support, and that -the claim is barred by the statute of limitations. There is nothing in this assignment of error which raises the question as to the right of the defendants, as heirs at law, to bring a suit of the character indicated in the' answer. The general rule is that a suit can not be maintained directly by an heir to recover upon a right’of action in the ancestor, but that such a suit must be brought by the legal representative. Murphy v. Pound, 12 Ga. 278. In Juhan v. Juhan, 104 Ga. 253, Mr. Justice Lewis, after recognizing and applying the rule just referred to, says: “We do not mean to say, however, that where there are no debts against the estate nor against the copartnership, and all of the heirs are sui juris and no necessity appears for any administration, they can not by agreement among themselves take charge of the estate and collect and distribute among themselves its assets.” See also Bryant v. A. C. L. R. Co., 119 Ga. 607. In Kent v. Davis, 89 Ga. 151, a ease in some respects very similar to the one now under consideration, it was held that a suit by heirs at law; was maintainable when there were allegations that there was no administration, no debts, and that all of the heirs at law were of full age; it being said that the court has power, if in its discretion it is deemed necessary, to require the' plaintiffs, in the event .they recover, to give bond indemnifying the defendant from loss to which he may be subjected in consequence of the recovery against him by an administrator subsequently appointed. But we do not think that the assignment of error in the present case is sufficient to raise the question as to the right of the defendants to maintain the action; the assignment as we construe it being, in effect, that the action, as maintained, was not made out by the evidence, and ■was subject to the defense of the statute of limitations. We have found no case in which it has been held that one heir at law can sue another heir at law for his proportion of a chose in action of his ancestor. .We will refrain from ruling on the questions as to whether such an action is maintainable, and whether the answer in the present case was sufficient in its allegations to show a right in the defendants to bring an action if such right existed. We will, therefore, deal with the the case upon its merits.

The action was not barred. The deed under which plaintiff claimed was under seal. The covenant upon which the defendants relied for a recovery was, therefore, a covenant under seal. While the plaintiff did not sign the deed, it is none the less a covenant in writing under seal; and when he accepted it, he accepted it with all the legal consequences resulting from the character and form of the instrument. The period of limitation applicable to the ease was therefore twenty years. Atlanta etc. Ry. Co. v. McKinney, 124 Ga. 937.

4. The answer of the defendants alleged that the value of the support of the deceased and the expenses of his burial amounted to $600. The prayer was that they recover this amount, with interest. The verdict was for $1,031. It may be that the evidence authorized a finding that the value of the support and the expenses of the burial would be the sum stated in the verdict; but the defendants can not recover more than they have sued for. The deed containing the covenant for the support of the grantor was made in 1894. The grantor died in 1901. Interest at the legal rate upon the amount sued for would not, in any event, approximate the amount stated in the verdict in excess of the $600 sued for. A new trial should have been granted upon the ground that the -verdict, as to the amount sued for, was unsupported by the evidence. TJpon another trial the jury should be instructed, upon that branch of the ease relating to the claim for the support, that they should ascertain such an amount as from the evidence would be the reasonable value of the support of the deceased from the date of the deed to the plaintiff to the time of the grantor’s death, and that the defendants would be entitled to recover their proportion of this amount, with interest. The cause of action alleged by the defendants is a cause of action by the deceased against the plaintiff; and if the suit had been brought by an administrator, the amount recovered by him would have been subject to division among all of the heirs at law, and the plaintiff would have been entitled to his share of the recovery after the payment of the debts by the administrator. As the suit is brought by the other heirs at law against him, of course they are not entitled to recover from him that which he would be entitled to receive from an administrator if the administrator had brought the suit.

Judgment reversed.

All the Justices concur.