
    HENDERSON et al. v. SAWYER.
    July 13, 1896. By two Justices.
    Oomplaiut for laud. Before Judge Smith. Twiggs superior court. October term, 1895.
    The three children of Mrs. Baker brought their action for the recovery of an undivided three fourths interest in certain land. It was admitted that both plaintiffs and defendant claimed under a deed from one Bryant to Mrs. Baker, bearing date October 25, 1876, whereby, in consideration of $2,000, the grantor “hath granted, bargained, sold, and by these presents doth grant, bargain, sell and •convey unto tk© said Mary A. M. Baker, ker keirs and assigns,” tke land in question, “to have and to hold said parcels of land unto ker tke said Mary A. M. Baker and tke keirs tkat she may kave by Solomon. Baker (ker Baker keirs) and assigns, with all tke rights land appurtenances belonging to them and their own proper use, benefit and behoof, forever in fee simple.” Mrs. Baker is yet living, and tke plaintiffs are tke only children of ker and Solomon Baker. They were-bom in 1860, 1865 and 1870.
   Simmons, C. J.

1. Since the adoption of the code, a mere repugnance in words will not authorize a court to hold that there is a real repugnance 'in a deed, and consequently to annul the latter of two inconsistent clauses therein, when the actual intention of the maker, viewing the instrument as a whole, can be arrived at without serious difficulty. Code, §2755; Thurmond v. Thurmond, 88 Ga. 182; Bray v. McGinty, 94 Ga, 192, and cases cited; Rollins v. Davis, 96 Ga. 107.

2. Accordingly where premises described in a deed were thereby “granted, bargained and sold” to a named person, “her heirs and assigns,” “to have and to hold unto her . . and the heirs she may have by” one Baker, her husband, “her Baber heirs,” “to them and their own proper use, benefit and behoof, forever in fee simple,” the effect of such deed was to convey the title to the grantee named and her three children in life when it was executed, as tenants in common. Judgment reversed.

Tke count granted a nonsuit upon tke ground tkat plaintiffs did not take -anything under tke deed, tke words in -the habendum being inconsistent witk the grant in the- premises do Mrs. Baker, and therefore void.

L. D. Moore, for plaintiffs.

Ryals <& Stone, for defendant.  