Isler v. Isler, 70 So. 455

Isler v. Isler

70 So. 455 | Miss. | 1915

Cook, J.,

delivered the opinion of the court.

The bill of complaint sets out that the complainant, appellant here, signed the deed because she was advised that it was necessary to do so in order that her husband, the real grantor, should effectually convey his interest in the land to the grantee. When complainant testified as a witness in her own behalf, she said that she was induced to sign the deed by the written agreement of her husband that she would receive one-half of the purchase price of the land. In other words, she testified that she owned a. one-half interest in the land, and her husband owned the other half interest, and that the legal title to an undivided one-half interest was vested in her because she had furnished a part of the money to buy the land. So, it' appears that she has alleged one thing and proven a different thing. The allegata and the probata do not correspond. If she signed- the deed for the reasons given in her testimony, she certainly intended to convey her interest in the land in consideration of the agreement that one-half of the proceeds of the purchase-money notes, executed by the grantee, would be paid to her-. The deed in question is, in form, practically a statutory deed. It is true that the name of appellant does not appear in the premises of the deed, and the name of her husband does, but it is also true that neither the name of herself nor her husband appears in the granting clause of the deed, but they both signed the instrument. Appellant did not acknowledge the deed; why she did not do so does not appear. If she is to be believed, it was her intention to convey her interest in the land for the reasons above stated. The testimony of appellant *428does not vary or contradict the terras of the deed itself. The meaning of the instrument is somewhat doubtful, but the testimony of appellant removes all obscurity, and she will not be heard to complain that the chancellor took her word for the facts on that score. She makes clear her reason for signing the deed, and thereby destroyed her chance for recovery.

We quote with approval the following from Devlin on Deeds, Yol. 1, sec. 204, especially the last sentence, as applicable to this controversy, viz.:

“The question whether a person who signs a deed, but is not named in it as grantor is bound by it should, in the author’s judgment, be one of construction, to be determined by reference to the circumstances connected with the transaction, rather than by a fixed and arbitrary rule of law. In several of the cases that have been cited in the preceding sections, the decision of the court was based upon the ground that a wife could not relinquish her right of dower, unless the conveyance contained apt words expressive of such an intent, and that by merely signing a deed in which she was not mentioned, her claim of dower remained unaffected. Possibly, a distinction can be drawn between such cases and cases where the party signing was under no disability. The general rule for construing all contracts is that if it appears by a contract that a party intends to bind himself, trivial inaccuracies will be disregarded, and if the intention of the parties can be ascertained, courts will effectuate that intention. Now, if a party signs a deed, he must do it for some purpose. It is in practice the general custom for deeds to be drawn by others than the parties to them. The scrivener may have omitted the name of the grantor, or by mistake may have inserted a wrong name. If such should be the case, and a party should sign a deed, intending to bind himself, all parties supposing he had executed an effectual conveyance, is it reasonable to say that the deed is nugatory because the party signing was not named in the conveyance! The fact that *429he signs and delivers the deed should be entitled to greater consideration, in determining whether he intended to convey his title, than the writing of his name in the deed by some one else. It has been objected to this view that the relations between the parties are to be determined from tbe language of the deed, and if that shows an intended contract between a party who does not execute the instrument, the party who does sign cannot be bound, because he is, so far as the deed itself evinces the intention of the parties, a person with whom no contract was intended to be made. But assuming that such an instrument shows that the contract was originally intended to be made between certain persons, and that is all that can be claimed, such an intention may subsequently have been altered. ’ If the name of the party originally mentioned in the deed should be erased and. the name of the party signing substituted, there can be little question that the party whose name was substituted and who executed the instrument, would be firmly bound by the instrument. If he signs the instrument, though his name is not substituted or mentioned at all in the deed, should not some effect be given to his act? We tliinlc so. While it may-well be that in such a case he should not be conclusively bound, yet we think that by his signature and delivery of the deed, he should be held presumptively to have assented to its provisions, or, at all events, that his intention should be considered so uncertain and ambigious that the court should, by reference to all the circumstances not tending to contradict the deed, but to explain the conditions surrounding its execution, attempt to ascertain his meaning.”

The evidence for appellee is to the effect that appellant signed the deed for the purpose of conveying her legal title in the land to the grantee, and that she understood that appellee would receive all of the purchase móney. The chancellor evidently believed that the facts were as stated by appellee.

Affirmed.