105 Ala. 435 | Ala. | 1894
The appellee, Lee, filed this bill against the appellant, Moore, to enforce a vendor’s lien for the payment of an unpaid balance due for the purchase of land. The defense set up in the answer is, that the deed of conveyance. does not include certain valuable parcels of land described in the answer, shown to the respondent, and which were represented to him as belonging to the tract which respondent believed he was purchasing; and, second, that complainant executed a deed with covenants that the vendors were seized in fee simple of the land and of warranty of title against all persons and claims, and that there is a failure of title, in that certain minor children of complainant owned an equal interest with her, which she did not and could not convey. The answer avers the insolvency of complainant. The answer is made a cross-bill, and prays for a rescission of the contract of sale and repayment of the' purchase money paid.
As to the first ground of defense, we are of opinion the respondent utterly failed in his proof. We are clearly satisfied, that the lands are described in the conveyance as the parties intended they should be. Conceding that the vendor showed the respondent a strip of land running up to the river, not included in the conveyance, which she claimed to belong to her, it is clear that the vendor explained the nature and character of her right and title to this strip ; and the evidence of other witnesses tends strongly to sustain the vendor in this claim, while there is nothing in the record to the contrary. The vendor stated to the purchaser, that her right to this strip of land rested in a parol agreement, and possession and claim of right thereto for twenty years. She is corroborated in this statement, but we think it clear that the vendor did not agree to put in the deed of conveyance any other lands than those to which she held written evidence of title. We are satisfied that the attorney who drew the deed acted under instructions, assented to by both parties, that the lands were to
The other ground of defense is that of failure of title in the property conveyed. We think the law under the evidence is adverse to the claim of the respondent and cross complainant, upon this point. The evidence is without conflict, that Ida V. Lee had minor children at the time of the sale and conveyance to respondent. Whether the minor children owned any interest in the lands depends upon the construction and effect of the deed of her father to the complainant, under and by virtue of which she claimed title. The deed expressed a consideration of love and affection, for his daughter, Ida V. Lee, and the lands were conveyed to “the said Ida V. Lee and her children forever,” “and for her own benefit and behoof forever,” and the said parties covenanted with the said Ida V. Lee that the lands were “free from all incumbrance,” &c. This deed was executed in July, 1867, and complainant and husband took immediate possession of the land, and remained in possession, until the sale and conveyance to respondent, on February 6, 1891, a period of about twenty-three and .a half years. The evidence shows that at the time of the execution of the deed from her father, she then had children living, and it further shows, that all the children, who were of age at the time of the sale and conveyance to respondent, joined with their mother and father in the deed and conveyance of these lands to respondent and cross complainant. Under the deed of conveyance from her father, Ida y. Lee did not take a life estate, with remainder to the children, nor was there any postponement of the estate of the children, but the children then in esse took jointly with the mother. The rule-of law is, that a conveyance to “A” and his children, if “A” have children at the. time of the conveyance, the children take jointly with the parent, and after born children are excluded.—Vanzant v. Morris, 25 Ala. 285, Varner v. Young, 56 Ala. 260; Mason v. Pate, 34 Ala. 379; Williams v. McConico, 36 Ala. 22.
We hold that, under the law and the facts, respondent acquired under the deeds of conveyance executed to him a good and perfect title to all the lands purchased by him.
There is no error in the decree of the chancery court, and it is in all things affirmed.