52 So. 307 | Ala. | 1910
The deed in question was construed in the opinion of the court in the case of Findley v. Hill, 133 Ala. 229, 32 South. 497, and the question involved was again considered in the cases of Findley v. Deason, 135 Ala. 661, 33 South. 1013, and Findley v. Hardy, 135 Ala. 663, 33 South. 1013, and was decided, in these last two cases, by a mere reference to the first ■case. As we understand the meaning given the deed in the opinion, it was that Murchison Findley took a life ■estate, with remainder to his descendents living at the
It is insisted, however, that this deed was executed in 1826, and was controlled by the statute of 1812, as-found in Clay’s Dig. p. 157, § 37, and which was not referred to or considered in the former opinion. We confess that the opinion does not discuss or refer to said statute; but if the ruling, to the effect that a fee tail was not created, is sound, then said statute would have no application. If, on the other hand, the deed did create a fee tail, and the court erred in 'holding to the contrary, then the statute of 1812, being the law when the deed was made, would apply, and Murchison Findley would take the absolute fee thereunder, unless it came within the proviso therein contained. Section 37, as found in Clay’s Digest, is as follows: ’‘Every estate in lands or slaves, which now is or shall hereafter be created an estate in fee tail, shall from henceforth be an estate in fee simple, and the same shall be discharged of the conditions annexed thereto by the common law, restraining alienations before the donee shall have issue, so that the donee, or person in whom the conditional fee is vested, or shall vest, shall have the same power over the said estates, as if they were pure and absolute fees: Provided, that any person may make a conveyance or demise of lands, to a succession of donees then living ,and the heir or heirs of the body
“First. Did this deed create a fee tail under the common law? Second. If it created a fee tail, did it come within the proviso created by the statute? If the first inquiry can be answered in the affirmative, and the second in the negative, then the grantor, Murchison Findley, took the absolute estate in fee simple, under the force of said statute, regardless of what the law is or has been since the execution of said deed. The first inquiry, as we have observed, was answered in the negative in the former opinion, and if the holding there was sound there is no need to answer the second inquiry. On the other hand, the first question has been answered in the affirmative, and the second in the negative, in the case of Simmons v. Augustin, 3 Port. 90, and Martin v. McRee, 30 Ala. 116, wherein it was helu that language similar to that given in the deed in question created a fee tail, and the first grantee took a fee-simple estate, under the statute of 1812. The words considered in the Simmons Case, supra, may not be identical with those applied by this court in the former opinion; but the words used in the instrument considered'in the Martin Case, supra, are identical with the meaning given the words employed in the present deed. There is, therefore, a direct conflict in the holding that this deed did not create a fee tail with the cases of Simmons v. Martin, supra, and we must, therefore, determine the soundness of the rulings, respectively, and adopt that view which may seem sound and correct.
It will be observed that the only authorities cited in the case of Findley v. Hill, 133 Ala. 229, 32 South. 497, in support of the holding that the deed in question did not create an estate tail, is Fearne on Rem. 117, and the case of Roberts v. Ogbourne, 37 Ala. 174. Fearne
As was said by the court, speaking through Stone, C. J., in the case of McQueen v. Logan, supra:. “This rule of interpretation is not now the law of Alabama. It was changed a third of a century ago. — Code 1876, § 2183. Only deeds or wills executed before the adoption of our first Code (January 17, 1853) are governed by it. New cases will hereafter come before us which can feel its influence. Alabama can now share with New York in the touchingly beautiful tribute paid to it by the learned and classical Kent (4 Com. 283).” We must add that this is among the few cases coming to us aftoi* over a half century from the adoption of the first Code, and which is governed by statutes previous thereto, but which presents a question long and well settled by the authorities.—Simmons v. Augustin, 3 Port. 90; Lenoir v. Rainey, 15 Ala. 667; Hamner v. Smith, 22 Ala. 433; Martin v. McRee, 30 Ala. 116; Bibb v. Bibb, 79 Ala. 442; McQueen v. Logan, 80 Ala. 307.
The Alabama cases cited and relied upon in brief of counsel for appellee can he reconciled with the present holding. The case of Powell v. Glenn, 21 Ala. 459, held that, owing to explanatory expressions, “heirs of her body” was synonymous with children. The present deed cannot be construed so as to limit the estate over to restricted descendants of Murchison Findley. It gives
The case of McVay v. Ijams, 27 Ala. 238, construed a conveyance or devise of personal property, a slave, and, while the opinion questioned a distinction that had been previously made in construing words one way when they related to personal property and another way Avhen referring to real estate, adhered to the distinction, and intimated that there would be a fee tail under the instrument there considered if it related to land.
The case of Dunn v. Davis, 12 Ala. 135, was by a divided court, and the instrument construed related to personal property, a slave, and “heirs or children” were nsed, and the court held these to be words of purchase and intimated that they should not be construed in the' same sense as were applied to real estate.
In the case of May v. Ritchie, 65 Ala. 602, the court held that, because of the use of the words “children” indiscriminately with “heirs of the body” to designate the remaindermen, they took as purchasers; but it was said in this opinion: “Under the operation of the rule in Shelley’s Case, of force when the deed was executed,
The case of Sullivan v. McLaughlin, 99 Ala. 60, 11 South. 447, related to a deed made since the Code of 1852. Moreover, other words were used which justified the court in holding that it related to the children of the grantee begotten by the grantor.
In the case of Campbell v. Noble, 110 Ala. 382, 19 South. 28, the court held that, under all the circumstances of the case, “heirs of the body" was synonymous with “child or children," and upheld the remainder. On the other hand, the meaning given the deed in question in the case of Findley v. Hill, supra, was that the heirs of the first taker did not mean heirs in the broader sense, but meant the children, the issue, or descendants of Murchison living at his death, and which is broad enough to cover all bodily heirs living at the time of his death. It is not restricted to any class of bodily heirs or descendants, but would include any and all who might be living at the time of his death, and falls entirely within the holding in the case of Martin v. McRee, 30 Ala. 116.
The foregoing is the opinion of the writer; but a majority of the court are in favor of following the case of Findley v. Hill, 133 Ala. 229, 32 South. 497. They think the construction of the deed in said case was proper, and that the opinion is sound, and not in conflict with the case of Martin v. McRee, 30 Ala. 116.
The judgment of the circuit court is affirmed.
Affirmed.