67 Ala. 121 | Ala. | 1880
— The important question of the cáse, which alone we deem it necessary to consider, is as to the character and operation of the instrument under which the appellées deduced title to the premises in controversy. If, as is insisted, it is a deed deriving operation from the statute of uses, it is not an objection to its validity that the estate of the grantee was not to arise and vest until the death of the grantor. In conveyances deriving their operation from the statute of uses, freehold estates may be made to commence in futuro; a fee may be limited on a fee, or an estate may be limited to take effect in abridgment or derogation of a preceding estate. — 2 Green. Cruise, 136; Horton v. Sledge, 29 Ala. 478; Simmons v. Augustine, 3 Port. 69.
But is the instrument a deed, or a mere agreement by which it is stipulated that in consideration of the performance of its covenants on her part, Mrs. Watson was entitled to the possession, rents and profits, of the premises during the life of Mrs. Browning, and on the death of the latter, was entitled, if the covenants had been performed, to title, not only to the premises, but to all other estate of Mrs. Browning, than her household furniture ? The latter is manifestly the character of the instrument, and if it is not so construed,
The legal estate in the lands residing in the intestate of the appellant at the time of her. death, entitles him to a recovery. If Mrs. Watson had fully performed the covenants of the instrument, in a court of equity she may compel a specific performance, obtaining the legal estate.
It is not necessary to point out the several rulings of the Circuit Court inconsistent with this view of the instrument. Because of them, the judgment is reversed and the cause remanded.