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JOHN W. COLLIER, Admr., etc., of H. J. Collier, Deceased, Plff. in Err.,
1. Where an instrument in the form of and attested as a deed contains a clause that it is "to go into effect at the" signer's death, and where there is no other indication as to the intention of the signer, and the paper is duly delivered, it will be construed to be a deed postponing possession.
[See note on this question beginning on page 23.]
denial of continuance.
2. In view of the circumstances attending the trial and the character of the case, the court did not abuse his
Headnotes by GILBERT, J.
discretion in overruling the motion for a continuance.
[See 6 R. C. L. 549.]
ERROR to the Superior Court for Echols County (Thomas, J.) to review a judgment in favor of plaintiffs, and overruling a motion for new trial, in an action brought to recover possession of certain land. Affirmed.
Statement by Gilbert, J.:
Ora Lee Carter and Mrs. Jennie Bell Carter brought an action of ejectment against John W. Collier, individually, and as administrator of the estate of H. J. Collier, deceased. The verdict was for the 11 A.L.R.-1.
plaintiffs. The defendant moved for a new trial, which was refused, and he excepted.
Upon the trial the plaintiffs introduced in evidence a warranty deed from H. J. Collier to Ora Lee Carter and Mrs. Jennie Bell Carter,
dated March 9, 1911, conveying the land in dispute. Among other things, the deed stipulated that it was "to go into effect at the said H. J. Collier's death." Two of the attesting witnesses swore that they witnessed the deed at the request of the grantor, and that the justice of the peace who witnessed the instrument died afterward. It appeared
that about March 9, 1911, H. J. Collier went to the home of the husband of one of the plaintiffs, and while there delivered the deed to Mrs. Jennie Bell Carter, one of the plaintiffs, telling her, at the time of delivery, to take the deed; that he did not know when he would die; and he said: "Here is the deed; this is yours; take it and take care of it, and at my death the property will be yours."
She retained possession of this deed continuously to the time of the trial. The defendant, John W. Collier, testified as follows: "I do not recognize that as H. J. Collier's signature; it is not his signature, to the best of my knowledge."
This was the entire evidence for the defendant.
Messrs. J. W. Haygood and Eldridge Cutts, for plaintiff in error:
Where the evidence is not contradicted as to the illness of counsel and his inability to attend, and as to his being the leading counsel, it is an abuse of discretion, or rather the court has no discretion, but must grant a contin
Bagwell v. State, 56 Ga. 406; Thompson v. Hays, 119 Ga. 167, 45 S. E. 970; Waxelbaum Co. v. Atlantic Coast Line R. Co. 3 Ga. App. 396, 59 S. E. 1129.
Mr. J. Munroe Bussell also for plaintiff in error.
Messrs. J. G. Cranford and E. K. Wilcox, for defendants in error:
The instrument in question is a deed conveying title in præsenti, with the right of possession postponed till after the death of the grantor.
West v. Wright, 115 Ga. 277, 41 S. E. 602; Isler v. Griffin, 134 Ga. 192, 67 S. E. 854; Brice v. Sheffield, 118 Ga. 128, 44 S. E. 843; Griffith v. Douglas, 120 Ga. 582, 48 S. E. 129.
The continuance of cases because of the absence of counsel is not favored.
Cotton States L. Ins. Co. v. Edwards, 74 Ga. 220; Poppell v. State, 71 Ga. 276; Wright v. State, 18 Ga. 383.
A continuance on account of the absence of counsel is largely discretion
Loyd v. State, 45 Ga. 72; Whitley v. Clegg, 120 Ga. 1040, 48 S. E. 406; Cooper v. Jones, 24 Ga. 474.
Gilbert, J., delivered the opinion of the court:
The decisive question in this case is whether the instrument quoted in the statement of facts shall be construed as a deed or as a will. Was it intended to pass title to the property in præsenti, with the right of possession postponed, or was it to be purely posthumous in its operation?
Under, the previous rulings of this court, as well as the great weight of modern authority in other jurisdictions, we think it clear that the instrument is a deed, with the right of possession postponed until the death of the grantor. The ten-* dency of the earlier decision was to construe instruments as testamentary where the maker's intent appeared in any way to vest title after his death, without regard to the form of the instrument. Later a more liberal rule was followed toward giving to the instrument a construction which would accord with the intention of the signer, and which would uphold its validity. Seals v. Pierce, 83 Ga. 787, 20 Am. St. Rep. 344, 10 S. E. 589; Wynn v. Wynn, 112 Ga. 214, 37 S. E. 378; West v. Wright, 115 Ga. 277, 41 S. E. 602; Brice v. Sheffield, 118 Ga. 128, 44 S. E. 843; Griffith v. Douglas, 120 Ga. 582, 48 S. E. 129; Isler v. Griffin, 134 Ga. 192, 67 S. E. 854; Hughes v. Hughes, 135 Ga. 468, 69 S. E. 818; Pruett v. Cowsart, 136 Ga. 756, 72 S. E. 30; Mays v. Fletcher, 137 Ga. 27, 72 S. E. 408. The instruments in no two of the cases just cited are identical, nor is the instrument in any one of them identical with the instrument in the present case. They are all sufficiently similar to establish the principle already enunciated as the rul