59 Ala. 494 | Ala. | 1877
When Mr. Craig executed the deed of gift to his daughter, Mrs. Roberts, February 7th, 1848, she had no child. The habendum of the deed is in the following language: “To have and to hold the said lands and slaves, and to use, possess and enjoy the same to her sole and separate use, benefit and behoof, free from the debts, liabilities and control of her said husband, William A. Roberts, or any future husband she may marry, for and during the term of her natural life : and at the death of said Esther C. [Roberts,] said lands and slaves, together with the natural increase of said slaves, shall vest absolutely and forever in such child or children as the said Esther shall have, born of her body and living at the time of her death, or the heirs of such child or children as may at that time be living.” The deed then gave a life estate to the husband of said Esther,- in the event she died, living her husband, “ and not have a child or children or heirs thereof living at the time of her death.” At the end of her husband’s life, then surviving her, or, at the end of her life, she surviving him, in either event she leaving no living lineal descendant, the property to revert to Craig, the grantor.
On March 17th, 1852, Mrs. Roberts and her husband— (she then being the mother of one or two children, who are-plaintiffs in this action)—for a recited valuable consideration, sold and conveyed “ all our right, title and interest in and to said lands ” to said James Craig, “ to have and to hold the same with all rights thereto belonging, as far as we have any right to convey the same, to the said James Craig and his heirs forever.” The deed contained no express covenants of warranty, and recited that “ said money [the purchase-money paid by Craig] to vest in the said Esther C. Roberts and her children, the same as said land by said deed did.”
The present action was brought by the children of said Esther, living at the time of her death, and was instituted after the death of said Esther and her husband. The defence relied on is said reconveyance by the said Esther and her husband to J ames Craig, under whom the defendants claim.
It may be sufficient for this case to declare that inasmuch as Mrs. Roberts had only a life estate at most, and her husband had only a contingent life estate, their conveyance of all their “ right, title and interest,” did not convey, and did not assume to convey the remainder, which the deed secured to such child or children as the said Esther might leave,
In the case of Horton v. Sledge, 29 Ala. 478, the deed created an estate in fee in the'first takers, determinable on a contingency afterwards to happen; and, in that event, over. Like the present deed, its consideration was natural love and affection. In any other aspect, material to this case, the deed there construed is not distinguishable from this. Speaking of that deed, this court said: “ If the deed in this case can not operate otherwise, it will be deemed, for the purpose of upholding it, a conveyance under the statute of uses. If it can not operate as a deed of bargain and sale, because its consideration is natural love and affection, it will be deemed a covenant to stand seized, or some other of the conveyances under the statute of uses.”
In 4 Kent’s Com. marg. 255, is the following language : “Nor do conveyances which derive their operation from the statute of uses, as a bargain and sale, lease and release, and covenant to stand seized, bar contingent remainders, for none of them pass any greater estate than the grantor may lawfully convey.”
In the following decisions of this court, it was held that a conveyance which in form conveyed the fee, if made by a life tenant, while it transfers to the purchaser all the interest of the grantor, yet it does not impair or affect the remainder, even though the latter be in form contingent. This court has never sanctioned the opposite doctrine, which rests largely on a dogma of feudal origin, and is not consistent Avith the genius of our people.—See Price v. Price, 23 Ala. 609; Lych v. Taylor, 17 Ala. 270; Jones v. Harkins, 18 Ala. 489. See also Lawrence v. Bayard, 7 Paige, 70; Doe v. Provoort, 4 Johns. 60; Doe v. Perryn, 3 T. R. 484.
The rulings of the Circuit Court are opposed to these vieAA's.
Beversed and remanded.