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MICHAEL H. LEE et al., plaintiffs in error, vs. SALLIE TUCKER et al., defendants in error.

Where a deed conveys property for the use, etc., of P., the children she now has, and those she may hearafter have by her present husband, and the habendum clause states the tenure to be for P., her heirs and assigns: Held, that P. took a joint interest with her children and not a fee simple


Estates. Deeds. Before Judge JAMES JOHNSON. Muscogee Superior Court. May Term, 1875.

Reported in the decision.

PEABODY & BRANNON, for plaintiffs in error.

BLANDFORD & GARRARD; R. J. MOSES, for defendants.

VOL. LVI. 2.

Lee et al. vs. Tucker et al.

WARNER, Chief Justice.

This was an action of ejectment brought by the plaintiffs against the defendants, to recover the west half of a certain described city lot in the city of Columbus. On the trial of the case, the jury, under the charge of the court, found a verdict for the plaintiffs for three-fourths of the premises in dispute, and $267 00 for mesne profits. The only question made here, was as to the proper construction to be given to the deed under which the plaintiffs claimed title.

It appears from the evidence in the record; that on the 29th of November, 1854, Hicks, in consideration of the sum of $800 00, conveyed the lot in dispute to Barber, as trustee for Mary Persons, wife of Malcolm Persons, "for the use, benefit and advantage, and in trust for the said Mary Persons, the children she now has, and those she may hereafter have by her present husband, free from the control, or disposition of her present or future husband. To have and to hold the said bargained premises unto the said Barber, trustee, for said Mary Persons, her heirs and assigns, to her and their own proper benefit and behoof forever in fee simple." It was also proven at the trial, that the three plaintiffs were the children of Malcolm and Mary Persons, and that the oldest child was twenty-seven years of age. The court charged the jury "that under the deed from Hicks to Barber, trustee, for Mary Persons, the said Mary Persons was a tenant in common with her children, and if the jury believe from the evidence, that the said Mary Persons had three chil-. dren living, then the interest of said Mary Persons in said premises, was one-fourth undivided interest." To which charge defendants excepted, and assigns the same as error.

It is insisted for the plaintiffs in error that Mrs. Persons took an absolute fee simple estate in the premises in dispute, under the deed of the 29th of November, 1854, and not a joint estate with her children as tenants in common. In our judgment, the deed from Hicks conveyed the premises in dispute to Barber, to hold the same in trust for the use, benefit

Driver vs. Maxwell.

and advantage of Mary Persons and her children, including those she then had, as well as those she might thereafter have by her then present husband; that Mary Persons took only a joint interest with her children in the property conveyed. The property was conveyed to the trustee for two purposes: first, to protect the wife's interest in it against the marital rights of her husband; and, second, to hold it for the use, benefit and advantage of Mrs. Persons and her children, who were to be the joint owners of it, including such children as she might thereafter have by her then present husband, and when the objects and purposes of the trust had become executed, the cestui que trusts would be entitled to the possession of an equal share thereof. If there were three children, they would be entitled to three-fourths of the property, and their mother to one-fourth of it. The word heirs in the habendum of the deed, was intended to mean the children of Mrs. Persons, and should be so construed when taken in connection with the other words contained in it. There was no question raised on the trial that the objects and purposes of the trust had not been fully executed, or that there was anything more to be done by the trustee, which would make it necessary for him to retain possession of the property. In view of the evidence contained in the record, we find no error in the charge of the court to the jury.

Let the judgment of the court below be affirmed.

MOSES DRIVER, plaintiff in error, vs. WILLIAM A. MAXWELL, administrator, defendant in error.

1. If, in the affidavit to obtain a distress warrant, a definite sum is claimed to be due for rent, the time when it became due need not appear, nor need the terms of the rent contract be set out, such as that the rent agreed upon was a part of the crop, etc. If these facts become material in any stage of the litigation, they may be proved, and it will be no variance.

2. In this state, the burthen of keeping the premises in repair is generally on the landlord, but patent defects existing at the time of the renting, and equal

Driver vs. Maxwell.

ly well known to both parties, are not to be amended by him, or at his expense, without a special undertaking. On the other hand, the tenant is not obliged to amend them without a like undertaking on his part.

3. Where the rent reserved is one-third of the corn and one-fourth of the cotton raised on the premises in the given year, and at the time of the renting both parties know the fence to be in a very bad condition, too low or too weak to keep ordinary stock from trespassing on the crop, and nothing is said about building it higher or repairing it, there is no legal obligation upon either party to make the fence better. The crop is at the mutual risk of the landlord and tenant, each to the extent of his interest, and whatever part of it may be destroyed by stock in consequence of the fence not being good, is a common loss. The landlord is entitled to his proportion of what is saved but to nothing for what is lost, and so of the tenant.

JACKSON, Judge, dissenting:

1. If the verdict of the jury be right under the evidence, this court should not set it aside, though there may be errors in the charge of the court. 2. This oft-repeated rule of this court should be more rigidly adhered to where the case against the plaintiff in error is made out by the testimony of an impartial witness, and his case supported only by his own evidence. 3. The fact that plaintiff in error made no motion for a new trial in the court below, but brought the case here directly on alleged errors in the charge, ought further to strengthen the application of this wise rule.

4. Whilst, by a strict construction of section 2284 of the Code, it is the duty of the landlord to keep in repair even the fencing around the farm rented, yet he is not bound to watch the fence and see that it is kept up. That duty devolves on the tenant, who may repair himself and charge the landlord with it, to be accounted for in the rent, or notify the landlord that the fencing needs the repair.

5. If both parties know that the fencing is defective at the time the farm is rented, the contract is made with reference to its condition at that time; unless there be an express contract therefor, the landlord is bound to put it in no better condition; the tenant will be held to rent with his eyes open, and will be bound for the whole rent agreed to be paid, no matter how defective the fence was and what depredations hogs or cattle or storm or sickness made upon it.

6. If the tenant see his crop destroyed by cattle without either fixing the fence himself or notifying the landlord to do it, he neglects a plain duty, which both common sense and the law of self-preservation, as well as the sensible construction of the law of the land, impose upon him, and he and not the landlord should suffer for such gross neglect.

7. When the only proof for the tenant, he himself being the only witness, is injury to his crop in its gathering, arising from sickness of those who gather it, storms in wasting it, and cattle and hogs who prey upon it, and he furnishes no data on which it is possible for a jury to predicate a conclusion in respect to how much injury the crop sustained by the breaking in through

Driver vs. Maxwell.

a defective fence, of the cattle and hogs and the proof of the landlord is that of a disinterested witness, fully sustaining the verdict of the jury, the verdict should stand for these, if all the other reasons given be untenable.

Landlord and tenant. Distress warrant. Pleadings. Before Judge CLARK. Sumter Superior Court. October Adjourned Term, 1874.

For the facts, see the opinions.

JOHN R. WORRILL, for plaintiffs in error.

C. F. CRISP; N. A. SMITH, for defendant.


1. The affidavit for distress warrant was for a definite sum alleged to be due for rent, but did not disclose when it became due, or set forth the terms of the rent contract. The plaintiff gave evidence of a contract, not payable in money, but in a part of the crop-one-third of the corn and one-fourth of the cotton to be raised on the premises in the year 1873. With this and some other evidence, a part of it tending to prove the quantity and value of the corn and cotton raised, the plaintiff closed; and the defendant thereupon moved for a non-suit, because it was not averred in the affidavit that the sum distrained for was due, and because there was a variance between the testimony and the facts alleged in the affidavit. The affidavit showed substantially that the amount claimed was due. It failed to show when it became due, but that is not required. Neither is it necessary to set forth the rent contract. What is required is laid down in section 4082 of the Code, and this affidavit conformed to all the provisions of that section. Whatever of detail was relevant in any stage of subsequent litigation, was admissible evidence without other or fuller pleading than the affidavit as it was. All that "any person who may have rent due," is required to swear, in order to obtain a distress warrant, is prescribed; and whoever goes that far is entitled to prove the actual facts of his

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