78 Ala. 111 | Ala. | 1884
Section 2948 of Code provides: “ A seal is not necessary to convey the legal title to land, to enable the grantee to sue at law. Any instrument in writing, signed by the grantor, or his agent having a written authority, is effectual to transfer the legal title to the grantpe, if such was the intention of the grantor, to be collected from the entire instrument.” The manifest purpose of the statute is to dispense with the necessity of a seal to a valid conveyance, and of formal, technical words of grant, release, or transfer. The statute is remedial, and should be liberally construed, so far as may be necessary .to suppress the mischief, and effectuate the purpose and intent of the law-makers; bnt, being also in modification of the common law, it will not be presumed to modify it farther than is expressly declared; and construction, or intendment, will not be resorted to, for the purpose of extending its operation.— Cook v. Meyer, 73 Ala. 580.
At common law, a deed must contain words of grant, release, or transfer, in order to pass the legal title to the land designed to be conveyed. The title to land can be transferred from one person to auother, only by apposite and appropriate language. ' It was not the intention of the statute to dispense with the use of any words whatever, operative to convey. By the statute, the duty is imposed upon the courts to liberally construe the words employed in the conveyance as words of transfer, and give them effect and operation according to the intention of
In Sharpe v. Orme, 61 Ala. 263, the effect of interlineations apparent on the face of a deed was considered. It was held, that if they were made before, or concurrently with the execution of the deed and its acknowledgment, they are as operative as if originally incorporated therein; but, if material alterations are made after delivery, a new attestation or acknowledgment is essential to make them operative; and that the time, to which the inquiry as to the making of the interlineations should be restricted, is the acknowledgment or attestation of .the' execution. When the interlineations are in the handwriting of the grantor, and are for the purpose of correcting imperfect descriptions of particular parcels of lands, the presumption is they were made before, or concurrently with the acknowledgment of execution ; and if there is any evidence tending to repel this presumption, the question of fact must be determined by the jury. These rules govern when the effect of the alterations, if operative, is to enlarge the title or estate conveyed.
The deed to Robert Bennifield was signed, and its execution acknowledged, with a blank immediately preceding the descriptive words of the section, township and range. The blank was left, because the grantor did. not remember the sub-divisions, which he was to insert afterwards. The evidence tended to show that the blank was filled by authority of the grantor, before or concurrently with the delivery of the deed. Attestation, or acknowledgment, and delivery are essential to the validity of a conveyance of land. Without delivery, its execution is not complete, and it has no operative force. An acknowledgment at one time, and a subsequent delivery, have, so far as respects the complete execution of the deed, the same effect as if they were cotemporaneous acts. The delivery relates to the acknowledgment, and the acknowledgment appertains to the delivery, from which time the deed takes effect.
In Sharpe v. Orme, supra, it was said: “ Though these interlineations were made subsequent to the acknowledgment of the deed, they would affect its validity only so far as it purports to pass the title to the particular parcels of land, the de
It is also objected, that the deed is void for uncertainty. In what it is insisted the uncertainty consists, the argument of counsel does not inform us; but we suppose, because the description of the land is by the numbers of section, township and range, without any allusion to the county, State, or meridian. The township is described as fractional. While there are several ranges thirteen, and each includes a township twenty, the courts judicially know that there is but one fractional township twenty of range thirteen in this State, and that it is situate in Randolph county. There is but one tract in the State to which the description in the deed is applicable. Besides, the action is brought by the personal representative of the grantor, to recover the lands as his property, who introduced in evidence the patent issued to the grantor; and the evidence of the justice who wrote the deed, and before whom it was acknowledged, shows that the purpose of the grantor, in making the deed, was to divide his property among his children. It may be that the finding of the attendant facts and circumstances was the province of the jury, but the deed can not be
The deed to Robert Bennifield should not have been excluded on any of the specified objections.
Reversed and remanded.