82 Tenn. 316 | Tenn. | 1884
delivered the opinion of the court.
In 1853 Wm. Swiney, the ancestor of defendant, A. N. Swiney, made a deed of two tracts of land in trust to Humphrey Cowden, of Marshall county, the
“ I have been twice married, and have living by my first wife five children (naming them), and by my present wife, Nancy, who is now living, five children (naming them, etc.); and I am disposed to make provision for the future maintenance, support and vjel-fare of myself, my wife, and my aforesaid ten children, now this conveyance is made to said Cowden in trust, as above mentioned, that Humphrey Cowden, permit me and my wife to possess and enjoy the property of every description above ■ conveyed during our natural lives, and should I die before my wife, ■that he 'permit her to enjoy the same till her' death or second marriage, and in the event of her second marriage or death, that he sell the whole of said property then remaining upon such credit or credits as he may think most advisable, and collect the proceeds of said sale, and any moneys that may be due me on notes and accounts, and that he divide the fund thus arising equally among my ten children
“In testimony whereof,” etc.
This instrument was acknowledged before the clerk of the county court on the day it bears date, and filed for registration three days after, and regularly ' registered;
Wm. Swiney, the maker of the deed, died in 1877, his wife some time before. The only property conveyed by the above deed remaining at his death is the land, and about that is the present controversy.
A. N. Swiney, one of the _ sons, claims two hundred acres of this land, and contests the title of the other parties who claim under the above deed. The trustee, Cowden, claims under the deed in his answer, and that the same is valid. The claim of A. N. is based on subsequent conveyances, by the father, Wm. Swiney, and the question is, which has the better title, the beneficiaries under the deed to Cowden, or the subsequent conveyee of the father ? If the deed to Cowden is valid, and operative as such, then being older, the defendant has no title. If void, then his title is the better.
The chancellor decreed in favor of the validity of the deed of 1853, and held its trusts valid, from which A. N. Swiney has appealed. The Referees report in favor of an affirmance of this decree, to which exceptions are filed. These exceptions present
First, Because the description of the land in the deed is insufficient to pass the title.
Second, The deed was never effectuated by delivery.
Third, That it is not a deed,- but a testamentary paper.
We notice these in their inverse order.
It is urged that this paper was intended to operate after the death of the maker, and is therefore testamentary. As said by this court in the case of Swails v. Bushart, 2 Head, 563: “ It is true that a will is a disposition of property to take effect after the death of a testatoi’, but that definition of a will does not exclude the conclusion that a deed may be the same in effect in that particular. The former is necessarily so, but not the latter.” In that case a paper was sustained as a deed which conveyed property to two children named, “their heirs and assigns forever, ajter my death,” and so in the case of Walls v. Ward, 2 Swan, 653. The rule stated in the cases is of a vested right to present enjoyment, or future enjoyment passes that will do to make the paper a deed. But it must be a right to some specific thing then owned by the donor, and to a designated person: 2 Head, 563-4; 10 Yer., 327.
There can be no question this is a deed under these cases, as well as all our cases on the subject. There is an absolute conveyance of the land to a designated party, designated on certain well defined
Was the deed delivered, and thereby made effectual as such by what was done ? On this question there can be no reasonable doubt. It was written and acknowledged in the presence of the trustee, " Cowden, and in a few days registered, the fees being paid by the grantor. Our cases settle the principle that whether the mere execution and delivery to the register for registration will amount to a delivery is a question of intention, but if the grantor directed it to be registered, or subsequently assented to it, that would be equivalent to actual delivery: McEwin v. Troost, 1 Sneed, 191. The execution and registration made a prima facie case of delivery, and it devolves on the other side to prove that it was not so intended: Thompson v. Jones, 1 Head, 576. This would be conclusive on the facts of this case, but in addition the trustee, Cowden, proves that he held the deed for about a week, and then handed it back
The only remaining question is, does the deed sufficiently describe the land so as to identify it, and show from that description what property was conveyed ?
The description is, “two tracts of land adjoining ■each other, in Marshall county, containing in all about three hundred and fifty-three and one-half acres, the land being the land on which I now reside.” This is all of it, that is, we see from the deed that two tracts of land adjoining each other are intended to be conveyed, and that they lie in Marshall county, Tennessee, and it is the land on which the grantor resides. The civil district is not given, nor adjoining lands.
On this question we, have had numerous decisions from which to ascertain the rule as to what is decreed a compliance with the statute of frauds, providing that no action shall be brought “upon any contract for sale of lands, tenements or hereditaments unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to. be charged thereby, or by some other person by him thereunto lawfully authorized.”
The Referees refer to the following cases decided by this court in which they report the description sufficient: 1 Head, 560, 566; 1 Cold., 265; 5 Cold., 616; 4 Bax., 544.
The court held that as the land belonged to the firm, nothing more was required in a division but to designate the tract assigned to each by such terms as would be well understood, or the general appellations by which they were known, and the description sufficient. In the case of McGavock and Wife v.
If this be the sound rule, and a majority of the court so think, then the present description is good, for it assumes that where the title deeds of the party from whom the conveyor received the land are to be considered as referred to for a full description of the same, and if this can be done, then no departure in principle is seen in holding that a party conveys land owned by himself, and designates by definite circumstances the tract conveyed, that you may look to his title deeds for the quantity and full description. This is going, as I think, beyond the case in 1 Cold-well somewhat, and I prefer the rule of the better considered, as I think, of our cases, that there shall
The result is, the report of the Referees is approved, and decree below affirmed with costs.