85 So. 397 | Ala. | 1920
Lead Opinion
The parties complainant and defendant to this bill for partition are the children of R. S. and Mary Alice Deramus. Prior to 1909, R. S. Deramus owned and occupied the land in controversy, a tract of 240 acres. In that year R. S. conveyed the land "unto her," his wife Mary Alice, with habendum as follows, "To have and to hold the same to her and her heirs and assigns forever," after which the deed proceeded:
"But it is hereby provided that the said property both real and personal shall never by contract, mortgage or otherwise be subject to my debts or the debts of my said wife and it is further provided that at the death of my said wife the said property shall descend to and become the property of the heirs of my body and her body now born or hereafter born during our wedlock."
In December, 1911, Mary Alice, being joined therein by R. S., executed a deed, purporting to convey the land, to the defendant W. M. Deramus in fee simple. Afterwards Mary Alice died, and then, in December, 1918, this bill was filed. The chancellor held that the deed from R. S. to Mary Alice vested in the latter a life estate with remainder to their children, and, upon the basis of this holding, decreed relief according to the prayer of the bill.
It is not to be denied that the grant "unto her," the wife of the grantor, "to have and to hold the same to her and her heirs and assigns forever," in the absence of limitation, would have created in her an estate in fee simple. But the last proviso was the equivalent of a limitation over operating as the grant of an estate in remainder after the death of the wife. A person not named as a grantee may nevertheless so take where the conveyance discloses a clear intention to that effect. 1 Devlin on Deeds (3d. Ed.) § 219. It is true that one rule for the construction of deeds requires that, to quote the language of Petty v. Boothe,
Appellants contend that the deed from R. S. to Mary Alice was void as to the estate in remainder for the reason that the land constituted the homestead of the couple, and the wife did not join in the execution of the deed nor acknowledge the same separately as provided by statute in the case of an alienation of the homestead. That the deed, in so far as it undertook to vest title in the wife for her life, operated in accordance with the intention of the grantor, is settled in the law of this state. Turner v. Bernheimer,
Further, it is suggested the deed to Mary Alice was never delivered. The grantor has testified that it was never "turned over" to the grantee. He testified, however, that he made the deed to her and had it recorded. Filing a conveyance of real property in the probate office for record, when duly signed, attested, and acknowledged, constitutes a sufficient delivery, completing the execution of the instrument. Elston v. Comer,
The decree is correct and must be affirmed.
Affirmed.
All the Justices concur, except McCLELLAN, J., who dissents.
Dissenting Opinion
The primary, fundamental factor in the determination of this cause arises out of the nature and, in any event, the proper construction of the instrument to be quoted in full. The majority opinion reproduces only a part of the instrument. This instrument bears date January 8, 1909, and was alone signed and acknowledged by R. S. Deramus, the husband of the Mary Alice Deramus named therein. That a husband may, without the joinder of the wife in the execution of the instrument, convey to the wife the legal title to land (except as restrained by the laws governing the alienation or incumbrance of the homestead), has been often declared in this jurisdiction. Turner v. Bernheimer,
The body of the instrument entire reads:
"Know all men by these presents: That, whereas, I, R. S. Deramus, of the county and state aforesaid, have heretofore used and expended for my own individual use and benefit the sum (principal and interest) of two thousand dollars in lawful money of the United States, which said money the individual property and separate estate of my wife, Mary Alice Deramus; now, therefore, to secure her in the payment of the sum I have bargained, sold and conveyed unto her and by these presents do bargain sell and convey unto her all of my right title and interest, either at law, or in equity in and to the following named and described property, viz.: All the personal property of every kind and description which I now own, and also the following described real estate situated in the county and state aforesaid, viz.: The SW 1/4 of the NE 1/4 and the NW 1/4 of the SW 1/4. W 1/2 of the SW 1/4 in section 1, township 18, range 13; and the E 1/2 of the NE 1/4 in Sec. 13, township 18, range 13, and the NW 1/4 except 14 acres in the S.E. corner. To have and to hold the same to her and her heirs and assigns forever. But it is hereby provided that the said property both real and personal, shall never by contract, mortgage or otherwise be subject to my debts or the debts of my said wife and it is further provided that at the death of my said wife the said property shall descend to and become the property of the heirs of my body and her body now borne, or hereafter borne during our wedlock.
"In witness whereof, I have hereunto signed my hand and affixed my seal, this the 8th day of January, 1909."
Obviously the instrument was written by an unskilled hand. As usual, its construction is to be undertaken in the light of that fact. May v. Ritchie,
1. It expressly appears upon the face of the instrument that it was only intended to be a "security for the payment of a debt." After designating with particularity the source and amount of R. S. Deramus' obligation to his wife — an obligation to pay that resulted from his recited "individual use" of the "individual property and separate estate of my [his] wife, Mary Alice Deramus" — the instrument provides: "Now, therefore, to secure her in the payment of the sum," etc. The unauthorized appropriation of the money of another, as recited in this instrument, affords a sufficient consideration for a mortgage given to secure the payment of the liability so incurred. Griffin v. Chase,
Since the instrument above quoted recites that the relation of debtor and creditor existed at the time it was executed, and since it unmistakably appears to have been the intent of R. S. Deramus to afford thereby a security for the payment of the debt so recited, it seems clear to me that the quoted instrument was but a mortgage. If Mary Alice Deramus had sought the enforcement of it in a court of equity, it seems not debatable that she, as mortgagee therein, would have been accorded a decree vindicating and enforcing such rights as inured to her as mortgagee in the premises.
2. If, however, it should be assumed, in the face of the above-stated clearly expressed intent of R. S. Deramus to give his creditor, his wife, security for the payment to her of the amount he had used from her separate estate, that the instrument is a deed, not a mortgage, it seems to me equally clear, under a long line of authorities in this jurisdiction, that Mary Alice Deramus took, not a life estate, but a fee in the land described in the instrument. Code, § 3396; Dickson v. Van Hoose,
Whether R. S. Deramus entertained the design, in executing the instrument of January 8, 1909, to hinder, delay, or defraud his creditors, is a question not presented by the pleadings in this cause; and evidence to *148 this end was not admissible under the issues thus made. According to Code, § 5232, an issue appropriate to the contest of this matter might have been made.
My opinion is that the decree entered in the court below is affected with fundamental error; that it should be reversed and the cause remanded in order that the real rights of the parties might be adjudicated in accordance with established principles in this jurisdiction. I therefore dissent.
