86 So. 295 | Miss. | 1920
delivered the opinion of the court.
Some years prior to 1.914 W. E. Holt and his wife, Mrs. Bell Holt, moved to the state of Mississippi and acquired certain property situated here. In the year 1914 they executed a certain instrument to ;C. F. Stubblefield, the appellant, reciting:
“For and in consideration of the sum of one dollar, and the further consideration of the party of the second part moving upon the following described premises, and working said lands, and the further consideration of the party of the second part caring for and supporting the parties of the first part their natural lives, the receipt of which is hereby acknowledged, have bargained, granted, sold and conveyed and by these presents do grant, bargain, sell and convey to the party of the second part, his heirs and assigns, the remainder of the following described tract of land;
“It is the intention of the parties of the first part to retain title in said lands during their natural lives and upon the death of one, title passes to the other to be retained un*498 til death, and to convey said premises and land in fee simple to take effect at their deaths, to the party of the second part. (Here follows description of the premises.)
“The parties of the first part have absolute control over the house now occupied by parties of the first part at present, and for the same consideration the parties of the first part bargain, sell, convey, and by these presents do bargain, sell, convey and deliver, all farm tools on said premises, together with all live stock.
“Together with the appurtenances to said premises belonging and all estate, title and interest both in law and in equity, except the life estates, of the parties of the first part in the same.
“To have and to hold the said granted premises with the appurtenances unto the party of the second part, after the deaths of parties of the first part, his heirs and assigns, and the party of the first part will ever defend the title to said premises unto the part of the second part against the claims of all persons except for taxes, after the first of Jan. 1915, but during the lives of the first parties, the party of the second part agrees to pay taxes on said lands.’;
And this instrument was acknowledged by the said W. E. and Mrs. Bell Holt and delivered to Stubblefield and placed on record. Stubblefield removed from the state of Illinois upon the premises so described, and proceeded to, and did, perform the obligations on his part until the year 1917 when Mrs. Bell Holt died. W. E. H'olt continued to live on the place until May the following year, when he moved away, claiming that he was mistreated by Stubble-field and his family. Stubblefield was a stepson of Mrs. Bell Holt, and she had reared him from his early youth up until he was some fifteen years of age and subsequent to a marriage with W. E. Holt.
W. E. Holt filed a bill in the chancery court setting out the execution of the said instrument and setting out that he was old, feeble, and blind and unable to earn a living, and at the time of the making of the said instrument that he and his wife were both old and feeble, and that they had
It is further alleged that complainant did not know at the time of the execution of the instrument, but now knows that it was not the intention of the defendant, the grantee, to carry out said agreement, but that he fraudulently induced the complainant and his wife to execute the instrument for the purpose of acquiring their property.
The defendant denied the allegations of the bill, seeking to void the instrument, and denied that he had procured the execution of the instrument, but that he had accepted the proposition made by Holt and his wife, and admitted the execution of the instrument, and averred that he and his family had treated the defendant and his wife with kindness and consideration, and had performed the obligations on his part up until the time Holt left the premises.. There was evidence taken both in support of .the allegations of mistreatment and in denial of such allegations. The draftsman of this instrument, who was a lawyer, was introduced in evidence, and testified to the understanding of the parties at the time the deed Avas drawn.' He said the parties all came to his office and desired him to draw a deed stating the considerations, and that he suggested the drawing of a will and that Mr. and Mrs. Holt said that was not what they wanted to do, and that Mr. Stubblefield said that that Avas not their contract, and that he had come down here at their solicitation and for their benefit, and did not care anything about it if they did not want to make the deed; he did not care to come here, and that he (the draftsman) suggested the putting of the provision for supportdn the deed, and that Mr. and Mrs. Holt said they did not care anything about that, that they had plenty to support themselves, and that Mr. Stubblefield said he was Avilling to support them and agreed for the provision to be put in there; that Mr. Stubblefield was to take charge of the farm at once, and that they intended to con
The question presented here for decision is whether the instrument above set out operates as a deed. While the deed is inaptly drawn, yet we think a careful consideration of all its provisions leads to the conclusion that it is a deed, and that it reserves to the grantors the life estate until the death of the surviving grantors. It is well settled in this state that the test is whether the instrument is to have effect -as an instrument of conveyance at the time of its execution, though the enjoyment of the estate may be postponed to a fixed date, or it may become effective at the death of the grantor or grantors, or at any other time in the future; or whether the conveyance, or instrument, as such, is to take effect at or after death.
Section 2762, Code of 1906 (Hemingway’s Code, section 2266), reads as follows:
“Any interest in or claim to land may be conveyed, to vest immediately or in the future, by writing signed and delivered; and such writing shall have the effect to transfer, according to its terms, the title of the person signing and delivering it, with all its instruments, as fully and perfectly as if it were transferred by feoffment with livery of seizin, notwithstanding there may be an adverse possession thereof.”
It Avill be seen from an analysis of this statute that the land or interest conveyed may be made to vest immediately or in the future if made by a writing signed and delivered; and that such writing shall have the effect to transfer ac
It is insisted by the appellee, and ivas perhaps the view of the court below, that this case is controlled by the case of Kelly v. Covington, 119 Miss. 658, 81 So. 485. In the deed considered in that case it was expressly stipulated:
“But this conveyance is not to take effect until the death of the first party, at which time it shall be in full force and effect, only to be defeated by a failure of considerations herein named by the party of the second party.”
It was the conveyance that was not to take effect in that case and not the estate conveyed.
In the present case the language is not identical, and it is not the conveyance that is postponed, but it is the enjoyment of the estate. The deed conveys the remainder to the grantee in terms; that is., followed by language attempted to grant a life estate. It is true that the word “title” is used in this clause, that is to say, “to retain title during their natural lives,”, but in the subsequent clause it is clearly shown that a life estate was contemplated, and such life estate is expressly excepted out of the habendum clause.
It seems to us clear on the face of the deed, construing all of its provisions together, that the intention of the parties was to reserve a life estate in the grantors and convey the remainder to the grantee, the grantee to come into possession or use of the property at the death of the surviving grantor.
We therefore reach the conclusion that the chancellor Avas in error in holding that the deed was invalid, and the judgment will be reversed, and the cause remanded, to be proceeded with, if the complainant desires, on the alternative prayer of the bill.
Reversed and remanded.
