Tatum v. Tatum

81 Ala. 388 | Ala. | 1886

SOMERVILLE, J.

— The court erred in excluding the deed from being admitted in evidence. Under section 2948 of the Code of 1876, any instrument in writing, signed by the grantor, or his agent having a written authority, with or without a seal, is effectual to transfer the legal title of realty to the grantee, “if such was the intention of the grantor, to be collected from the entire instrument.” Apart from the statute this has long been the growing tendency of the authorities for the past century, as indicated by the rule deduced by Mr. Washburn, and other authors' — that “if it is clear that it is the intent of the maker of the deed that the estate should pass thereby, it will, if possible, be so construed as to effect this, although it want formal words, if there be any word in the deed sufficient to convey the estate.” — 3 Washburn Real Prop. (4th Ed.) 379 (* 620-621); 1 Wood Conv. 203. It is remarked by a learned writer on conveyancing that “the law is curious, and almost subtilizes to devise reasons to make assurances and deeds enure according to the just intention of the parties and to avoid wrong and injury, which, by abiding the rigid rules, may be wrought out of innocent acts.” — 2 Wood Conv. 206, note.

The present deed contains the usual operative words of conveyance. The objection is that they are not made to apply expressly to the land described in the deed, but only to the personalty. The answer to this suggestion is that the habendum clause of the deed may be looked to in order to aid the intention of the grantor, and this clause sufficiently shows that the lands were intended to be included within the operative words of conveyance — “grant, bargain, sell and convey” — used in the premises of the deed, or that part preceding the habendum clause. — Tiedeman on Real Prop., §§ 827, 803 ; Webb v. Mullins, 78 Ala. 111.

2. The fact that some portion of the land mentioned in the deed was not described with sufficient certainty would not justify the total exclusion of the deed. It would be valid and effective as to that portion properly described. How far the identification of any lands imperfectly described could be aided by parol evidence does not arise in' the record, and need not be discussed.— Meyer v. Mitchell, 75 Ala. 475, and cases cited.

Reversed and remanded.