Reed v. Hazleton, 37 Kan. 321

Reed v. Hazleton

37 Kan. 321 | Kan. | 1887

Opinion by

Holt, C.:

The plaintiff in error complains, first, that the court was not authorized to make certain findings of fact under the pleadings in the case which were made; and second, that the findings of fact were not sufficient to authorize the conclusions of law and the judgment of the court. The question to be decided in this case is, whether the writing-signed by Henry Ricket and John Hazleton, called an article of agreement, is in reality a contract, or an instrument testamentary in its character. If it is a contract so far as it relates to the land in dispute, then the judgment of the court below is correct, and should be affirmed; if it is testamentary, it should be revérsed. We have not been able without difficulty to determine the nature of this written instrument. It was evidently prepared by some one not accustomed to drawing written instruments, and unacquainted with the usual legal terms. We have not been able to find an instrument like this in all the numerous authorities cited by the parties, and such authorities have been of little service to us, except as they contain the general rules that mark the distinction between contracts and papers testamentary, and we have found it much more difficult to apply the rules of law to this article of agreement than to ascertain what the true rules are.

*325 1. Written instrument—contract—will.

2 Instrament, when a contract — when a testament.

*324There are two parts to the instrument which we are now considering: one concerning the disposition of his personal property by Henry Ricket, which we are not called to pass upon, directly at least; the other having reference to his real estate, the title and possession of which is the subject of this *325controversy. The first part of this instrument is a contract between Eicket and Hazleton; but from that alone it does not follow that the second part is a contract also. One provision of an instrument in writing may be a contract and another, concerning different property, testamentary. (Kinnebrew v. Kinnebrew, 35 Ala. 628.) We shall not discuss the alleged error that the findings of fact are not within the issues of this case; if they are, they would not alter the construction which we believe ought to be placed upon this instrument; but we will say in passing to the main question to be decided in this action, that the fourth finding is probably within the objection made by the plaintiff. The rule established by the authorities, and applicable to this case, is substantially this: If an instrument of writing passes a present interest in real estate, although the right to its possession and enjoyment may not accrue until some future time, it is a deed or contract; but if the instrument does not pass an interest or right until the death of the maker, it is a will, or testamentary paper. (Sperber v. Balster, 66 Ga. 317; Turner v. Scott, 51 Pa. St. 126; Burlington University v. Barrett, Ex'r, 22 Iowa, 60; 19 Cent. L. J. 46.) We shall accept this as the correct rule, and apply it to this instrument. Did Eicket by this instrument give, or intend to give, to Hazleton, a present interest in this land ? Let us examine. The first provision therein contained is that Eickett shall retain full and peaceful possession of the premises during his lifetime, and the last thing said of the land is, that after his death the title .thereof shall vest in Hazleton. These two clauses embrace all that is stated directly about the title and possession of this land. It is provided, however, that Hazleton shall have his home with Eicket. Where? We might possibly, perhaps fairly, infer upon these premises, though it would be but an inference, and that should not control the provisions which are plainly written.. Before his death Eicket left this tract; would Hazleton, under the terms of this instrument, have been compelled to go too, in order to keep his home with Eicket ? It will *326•be noticed that it was not Ricket that was to live with Hazleton, but Hazleton who was to have his home with Ricket. This instrument, as we have suggested,, may have been inartistically drawn so far as legal forms are concerned, but when .it has reference to the possession of this land during the lifetime of Ricket, its language is strong and explicit. He was to retain — to hold, not to lose — full, i. e., complete, entire— and peaceable possession. There is no joint possession, sharing it with another, nor was it to be divided, but entire. We cannot therefore believe that that part of this instrument which provides that Hazleton should have his home with Ricket gave him any right of possession in this land against Ricket, when it is construed with the unambiguous statement that Ricket-should have full and peaceable possession.

Under the view which we take of this instrument, it will be unnecessary to examine the nature of a contract of bargain and sale and a covenant to stand seized to the use of th'e grantee, which are discussed in the briefs filed in this action. We believe that it ought not to be placed in either of those classes of conveyances. We fail to find in the instrument the ordinary words employed in a conveyance, “give, grant, bargain, and sell,” nor are there other words of like signification which would establish an intention to convey a present estate. In a word, this article of agreement does not contain any of the usual operative words of a conveyance, with the possible exception of this clause: “After the death of the said Henry Ricket of the first party, the right and title of the land in question shall vest in the said John Hazleton of the second party.” That provision had no present operation, and could be revoked by the grantor at any time. It was testamentary. (McKinney v. Settles, 31 Mo. 541: Tiedeman on Real Property, 803.)

By this instrument the possession of the personal property was given to Hazleton, while Ricket retained possession of the real estate. When the provisions are so explicit in reference to Hazleton’s possession of the personal property, we cannot believe that the failure to make any reference to the right of *327Hazleton to possession of the real estate in this instrument of writing, was unintentional. The old man wisely kept possession and control of his home, to prepare for the possible change in the feelings of himself and Hazleton. Hazleton was not without recourse if he had performed services for Avhich he had not been paid. He could have presented his claim against the estate, and the courts Avere open to aid him in obtaining his dues.

• It is recommended that the judgment of the court below be reversed.

By the Court: It is so ordered.

All the Justices concurring.