83 So. 740 | Miss. | 1920
delivered the opinion of the court.
This -is an appeal from a decree rendered in a partition proceeding. A. J. Raley, a widower with several children, married a widow who will hereinafter be referred to as Jane Raley, who also had several children, of which marriage one child was born. Raley died in 1913 seized and possessed of certain land, and prior to his death he conveyed other land then owned by him by the following deed:
“I, A. J. Raley of'said county and state, in consideration of five dollars to me paid by Jane Raley, and in consideration of the love I entertain for her, for said*563 consideration taken singly and for both considerations taken together, recognizing two considerations, either of which I regard as ample, and sufficient within itself —were it not for the other — I do grant, bargain, sell, transfer and convey to the said Jane Raley, who is of said county and state, forever, the following property, to wit:
“All my personal property of every description whatsoever and all my mixed property and the following lots, tract and parcels of land: Southwest quarter of southwest quarter, section 25, Township 5, and range 17 East. Northwest quarter, Northwest quarter, section 36, Township 5, Range 17 East, thirty acres in Southeast quarter of ■ Southeast section 26, Township 5, Range 17 East.
“Said land is situated in district 5 of said county and state.
“I do hereby grant, bargain, sell and transfer.and convey all my right, title, property and interest in and to said personal property, said mixed property and to said land forever. The same is incumbered, and I have the' right to convey it and do hereby convey it for the consideration as above» set forth and do hereby covenant with the said Jane Raley warrant and forever defend the title to said land and the other property against áll legal claims whatsoever and in connection with the said Jane Raley, I do also for the love I entertain for my children covenant with her and my heirs to warrant and forever defend the title to said land and the other property to them, that is to Jane Raley and my children.
, “Signed, sealed and delivered on this the 17th day of January, 1896. A. J. Raley.
Jane Raley died in 1915, and thereafter this proceeding was instituted for a partition of the property hereinbefore referred to; the complainants therein being the children of Mrs. Raley, including .the child born of her second marriage, and the defendants therein being the children born of Raley’s first marriage.
Mrs. Raley is the sole grantee in the granting clause of the deed, but the contention of her husband’s children is that the intention of the grantor must be collected from the whole deed, and that the words “I do also for the love I entertain for my children covenant with her and my heirs to warrant and forever defend the title to said land and the other property to them, that is to Jane Raley and my children,” indicates that Raley intended to convey the property to Mrs. Raley and his children. These words appear in the covenant of warranty and it is impossible to determine what the grantor meant thereby, but they cannot be held to convey any interest in the property to his children, for the reason that they are not words of grant; such words, in some form, being absolutely essential to the passing of an estate by deed. The conveyance is to Jane Raley alone.
The court below having decided the case on the theory that this deed conveyed an estate to Jane Raley and the grantor’s children, its decree must be reversed and the cause remanded.
Reversed and remanded.
