49 Ind. App. 21 | Ind. Ct. App. | 1911
The sole question presented by this appeal is the construction of a certain instrument in the following words:
"This indenture witnesseth, that Keziah Ann Timmons and Levi Timmons, her husband, retaining the rents and profits during the life of Keziah Ann Timmons, in Fountain county, Indiana, convey and warrant to the son of the above grantors, Levi T. Timmons, of Fountain county, Indiana, for the sum of love and affection, and $2,000, the receipt of which is hereby acknowledged, the following real estate in Fountain county, Indiana, to wit: [Here follows description of real estate.] Reserving to Keziah Ann Timmons the rents and profits and full control of the land during her natural life, and after the death of Keziah Ann Timmons the grantee herein to pay to her husband, Levi Timmons, during the life of her said husband, the sum of $200 a year, no payment to be due to her said husband during the life of Keziah Ann Timmons, and assume and pay off a mortgage of $1,600 now on said land, as part of the $2,000 purchase price, and after the death of said Keziab Ann Timmons and Levi Timmons, her husband, the land before conveyed to be the absolute property in fee simple, without any further payment, of said son, Levi T. Timmons. In witness whereof, said Keziah Ann*23 Timmons and Levi Timmons, her husband, have hereunto set their hands and seals, this 10th day of September, A. D. 1901.
her
Keziah Ann X Timmons,
mark
Levi Timmons.”
The instrument was properly acknowledged.
Levi T. Timmons, appellee, brought suit against appellants to quiet title to the land described in the foregoing instrument. Appellants filed a cross-complaint, in which they averred that they are the owners of the undivided one-sixth part each of the real estate described in the complaint, and prayed that the so-called deed of conveyance before set forth be set aside, for the reason that the instrument, while purporting to be a deed of conveyance, is, under its terms and conditions, testamentary in its character, and of no effect, and that their title be quieted to the undivided one-sixth part each in said real estate. There was a decree for appellee, quieting his title as prayed. The errors assigned arise on the sustaining of demurrers to appellants’ eross-complaint and to their answer, which averred similar facts.
Both parties agree that if the instrument is testamentary, and conveys no interest until the death of the grantors, it is void; that if it conveyed at the time of its execution an interest in the land, subject to the life estate reserved, it is valid.
The present instrument in the granting clause uses the ordinary words of conveyance of a fee-simple estate, “convey and warrant, ’ ’ and in the same clause expressly reserves a life estate in Keziah Ann Timmons. The reservation expressly of a life estate is inconsistent with the intention to reserve any other or any greater estate. Expressio wvius exclusio alterius est. After the granting clause, the rents, profits and full control of the land are reserved to Keziah Ann Timmons during her life, but the use of the words “full control” adds nothing to the former reservation. The granting or reserving of a life estate imports full control by the life tenant while the estate endures. The mere reservation of a life estate in a deed does not make the instrument testamentary. Stroup v. Stroup, supra; Cates v. Cates (1893), 135 Ind. 272; Spencer v. Robbins (1886), 106 Ind. 580; Wilson v. Carrico (1895), 140 Ind. 533, 49 Am. St.
In the'ease of Cates v. Cates, supra, a deed in which the grantor reserved “all the estate in said lands, and the use and occupation, rents and proceeds thereof unto himself during his natural life, ’ ’ was held to convey a present interest, postponing enjoyment until the death of the life tenant. In the case of Owens v. Williams (1888), 114 Ind. 179, the grantor in the granting clause “conveys and warrants” to the grantee “after my decease and not before, the following real estate,” and it was held that this did not make the deed testamentary in character.
The closing recital of the deed under consideration is that after the death of the grantors, “the land before conveyed is to be the absolute property in fee simple, without any further payment, of said son, Levi T. Timmons. ’ ’ This recital contains nothing implying that said land, would not l^e the property in fee simple of the son at an earlier date than the death of the grantors, nor does it say that his title in fee simple shall not vest until that time. This clause relates to the time at which payments by the grantee shall cease, rather than to the time of vesting of the fee, and such recital does not diminish the effect of the clear words of present conveyance in the granting clause. In the ease of Spencer v. Robbins, supra, the deed contained a recital “then [at the death of the grantor] the title to vest in them absolutely.” This was held not to show an intent contrary to the vesting of a fee simple in the grantees. In the case of Wilson v. Carrico, supra, the deed which “conveys and warrants” the real estate, and then provides, “the above obligation to be of none effect until after the death of the grantors, then to be in full force,” was held to convey a present interest, postponing enjoyment, and not to be void as a testamentary instrument.
No error was committed in sustaining the demurrers to appellants’ answer and cross-complaint, and the judgment is affirmed.