An instrument in the form of a warranty deed reciting a consideration is not testamentary in character by reason of the fact that it contains the following clause: "A life estate and interest is hereby reserved by the grantor herein, which she may enjoy the possession, profits, and otherwise use said land the same as if she owned the fee-simple title. At the death of the grantor the fee-simple title is to vest in the grantee herein named." Accordingly, the court did not err in granting an interlocutory injunction, on the application of the grantee thereunder, restraining subsequent grantees of a life-tenant in a lease of the timber on the land conveyed from cutting and removing such timber from the premises therein.

No. 15161. MAY 9, 1945. REHEARING DENIED JUNE 7, 1945.

The petition of Vernon Thomas and Lee S. Purdom against G. L. Smith, Rufus Smith, and R. L. Horne alleged in substance that, the petitioners were the owners of a described tract of land containing 526 acres, more or less, being part of lot No. 128 in the 4th district of Pierce County, Georgia; that the defendants had without any authority entered upon the said land and had cut and removed therefrom certain timber, the amount of which being unknown to the petitioners; and that, unless restrained, the defendants would continue to cut and remove the timber thereon, resulting in irreparable injury to the petitioner. The defendants answered, admitting the cutting and removal of timber as alleged, but asserted their right to do so in virtue of a lease executed to the defendant Horne by Mrs. S.E. Merchant, dated November 28, 1944, and duly recorded; and alleged that, at the time the said lease was executed, the only conveyance of record in the said county under which the petitioners could claim any title to the land in question was a deed from Mrs. S.E. Merchant, dated March 10, 1939, and duly recorded, which deed contains the following limitation or reservation: "A life estate and interest is hereby reserved by the grantor herein, which she may enjoy the possession, profits, and otherwise use said land the same as if she owned the fee-simple title. At the death of the grantor the fee-simple title is to vest in the grantee herein named." It is alleged that because of the said reservation the defendants' grantor. Mrs. S.E. Merchant, had the right to convey the timber under the lease to the defendant Horne.

On the interlocutory hearing the case was submitted upon an agreed statement of facts, which was in substance as follows: The only question to be determined is one of law as to whether the petitioners or the defendants have a superior title to the timber, and it involves the construction of the deed from Mrs. S.E. Merchant to Vernon Thomas and Mrs. Mollie Purdom, dated March 10, 1939, and recorded March 21, 1939. The only title the petitioners have is by reason of this deed and another from the same grantor to Vernon Thomas and Lee S. Purdom, dated January 10, 1945. It was agreed that the defendant Horne had entered upon the land in dispute and had cut and removed therefrom 7000 feet of timber and 19 1/2 units of pulpwood. It was agreed that Lee S. Purdom was the sole surviving heir at law of Mrs. Mollie Purdom, deceased, Mrs. Mollie Purdom having died since the execution of the deed by Mrs. S.E. Merchant to Vernon Thomas and herself on March 10, 1939; and that Lee S. Purdom stands in the same legal right as to such deed as would Mrs. Mollie Purdom were she alive. It was further agreed that the deed of March 10, 1939, was on a printed form; and that the description of the property and the reservation therein were written with a typewriter, the granting and habendum clause being part of the printed form. It was agreed that the judge might decide the case upon the petition, the deed referred to therein, and the lease referred to in the answer of the defendants, together with the defendants' answer, all of which were put in evidence. An interlocutory injunction was granted, and the defendants excepted, assigning error thereon.

DUCKWORTH, Justice. (After stating the foregoing facts.)

It is conceded that, if the instrument in the form of a deed, executed on March 10, 1939, is a valid deed, and the reservation therein is an ordinary life-estate, the defendants would have no right under their lease from the life-tenant to cut and remove the timber in question, and that the court did not err in granting the interlocutory injunction. The decisive question upon which the entire case turns is the proper interpretation of the reservation clause contained in that instrument. That clause expressly states that the reservation is a "life estate and interest," and reserves for the grantor stated rights in the property, to wit, "enjoy the possession, profits and otherwise use said land the same as if she owned the fee-simple title." This reservation is followed by the words: "At the death of the grantor the fee-simple title is to vest in the grantee herein named." The instrument is in the form of a deed and it names itself as an "indenture." It recites a consideration and contains the words, "granted, bargained, and sold," and the usual covenant of a warranty clause.

Counsel for the plaintiff in error contends that the instrument, by reason of the reservation clause, is testamentary in character, is therefore not a deed, and that the grantor therein had a right to convey the timber to the defendants subsequently to the date of that instrument, and cites in support of this contention, Symmes v. Arnold, 10 Ga. 506, Johnson v. Yancey, 20 Ga. 707 (65 Am. D. 646), Brewer v. Baxter, 41 Ga. 212 (5 Am. R. 530), Arnold v. Arnold, 62 Ga. 627 (4), Sperber v. Balster, 66 Ga. 317, Blackstock v. Mitchell, 67 Ga. 768, Johnson v. Sirmans, 69 Ga. 617, Ward v. Campbell, 73 Ga. 97, and Barnes v. Stephens, 107 Ga. 436 ( 83 S.E. 399), all of which involved instruments containing a reservation clause similar to that contained in the instrument under consideration here, and held that the instruments there considered were testamentary in character. This court, in Wynn v. Wynn, 112 Ga. 214 ( 37 S.E. 378), and again in Patellis v. Tanner, 197 Ga. 471 ( 29 S.E.2d 419), cited all the cases relied upon by the plaintiffs in error, and at the same time cited a large number of other decisions which dealt with similar instruments and held them to be deeds and not testamentary in character. In Patellis v. Tanner, supra, after citing such cases, this court (page 474), said: "The trend of the modern decisions is to uphold such an instrument as a deed, although it may contain words strongly suggestive of the idea that it is not to take effect until the death of the grantor." In seeking to reconcile the apparent conflict in the decisions, it is essential to recognize that each case dealt with a different instrument. Such instruments may or may not have been materially different, but a correct meaning of each instrument was determined by this court in the particular case in which it was involved. It should be observed that all the decisions of this court without exception give full recognition to the correct legal rule applicable in all such cases, to wit: that, if the instrument in the form of a deed conveys an estate in praesenti, although the right of possession be postponed, it is a deed; but, if the instrument conveys no present estate or right, but is an attempt to convey an estate or right in the property upon the death of the grantor, it is testamentary in character and will not be upheld as a deed. The apparent conflict in the decisions of this court is obviously due to the construction which this court placed upon the particular instrument involved in the decided case, all of such decisions applying this recognized rule of law to such instruments as there considered.

The reservation in the deed here involved recognizes that the grantor therein no longer holds the fee-simple title in the property described. It merely reserves to the grantor the right to enjoy the possession, profits, and use of the property. Construing the deed as a whole, it is clear that the grantor intended, by the statement that at her death the fee-simple title should vest in the grantee, merely that the property would not be longer encumbered by the life-estate, and that the right of possession and use would thereupon vest in the grantee. Instruments in the form of a deed containing reservations very similar in meaning to that here found were held in the following cases to be deeds: Price v. Gross, 148 Ga. 137 ( 96 S.E. 4); Crawford v. Thomas, 150 Ga. 435 ( 104 S.E. 211); Montgomery v. Reeves, 167 Ga. 623 ( 146 S.E. 311); Smaha v. George, 195 Ga. 412 ( 24 S.E.2d 385); Patellis v. Tanner, supra. The rights reserved to the grantor of possession, receipt of profits, and the general use of the property are no more than are allowed a life-tenant under the statute, Code, § 85-604. See Shealy v. Wammock, 115 Ga. 913 ( 42 S.E. 239); North Georgia Fertilizer Co. v. Leming, 138 Ga. 775 ( 76 S.E. 95). It follows from what has been said that the instrument executed on March 10, 1939, is a warranty deed reserving an ordinary life-estate to the grantor, and hence such life-tenant was thereafter without title which she could convey to the defendants by the lease under which they claim the right to cut and remove the timber. The court did not err in granting the interlocutory injunction.

Judgment affirmed. All the Justices concur.