Williams v. Green, 91 So. 39

91 So. 39 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellant was the complainant below, and filed his bill against the appellee for a one-half interest in certain property and for an account of rents and profits received. He bases his claim upon the theory that he acquired a one-half interest through Margaret Askew, wife of Daniel Askew, under the terms- of a deed made by Daniel Askew to Margaret Askew, and through a will from Margaret Askew to himself. The pertinent clause of the deed involved reads as follows:

“To have and to hold the same, to her, the said Margaret Askew for and during the term of her natural life; and at her death to revert to the said party of the first part, if living, or to his heirs, if dead.”

The said Daniel Askew died before Margaret Askew, and the appellee ivas his only child, and was the child of a former marriage. There was a demurrer to the bill, which was sustained, and an appeal granted by the court below to this court.

The appellee relies upon Boone v. Baird, 91 Miss. 420, 44 So. 929, and it is evident that the court below relied upon the same case, in which the deed conveyed a life estate to the wife but the remainder to the heirs of the grantor, and the court, in construing that deed held that the word “heirs” was used in the sense of children, and not in its technical sense, proceeding upon the idea that the deed divested all right and title out of the grantor, and that, on delivery of the deed, full title passed from the grantor, a life estate going to the wife, and the remainder vesting in the child. In the present case, however, it is provided that at the death of the wife the fee shall revert to the grantor if he be living, and, as a person cannot be both grantor and grantee in a deed, this amounted simply to a reservation of the fee to himself. There was no granting of an estate in praesenti, and it was held in Kelly v. Covington, 119 Miss. 658, 81 So. 485, that the deed must, to be effective as an instrument of conveyance, convey in praesenti, and, if it was provided in the deed that it should only become effective at the death of the grantor, that it was not a deed, and would have no effect as such. The clause involved there read as follows:

“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 deféated by a failure of consideration herein named by the party of the second part.”

The opinion cites Martin v. Graham, 114 Miss. 653, 75 So. 447, in which the court held that to make a valid deed the maker must part with his jus disponendi of the property to the extent of the deed. This being true there was no conveyance during the'life of Daniel Askew to the daughter. The use of the word “heirs” in the present deed, taking the whole instrument together, we think means that it was the purpose of the grantor to leave the property to his heirs generally, and that the- word was not used in the sense of children. The case of Harris v. McLaran, 30 Miss. 533, supports the views which we have of the present deed. The doctrine of this case was fully recognized in Boone v. Baird, supra.

A second contention is made by the appellant that the deed from Daniel Askew to Margaret Askew was void because it was not signed by the wife. It is contended that, under section 2159, Code of 1906 (section 1834, Hemingway’s Code), the wife must join in the husband’s deed to make it valid even though the deed be made to herself. In our view this contention is not sound. It is a general principle that a person cannot be both grantor and grantee in a deed, and, as the purpose of the statute in requiring the wife to join when the husband owns a homestead, or the husband to join when the wife owns a homestead, or to protect the homestead or the homestead rights, there would be no necessity for such joinder in cases of conveyance between husband and wife, because neither could reconvey to a third party without the joinder of the other. In 21 Cyc. 536, the rule is stated as follows:

“In jurisdictions requiring conveyances or mortgages of homestead property to be executed by both husband and wife, the husband may make a valid conveyance, or according to some decisions, mortgage of the homestead premises to his wife, without her joining.”

In, support of this text are cited decisions from Alabama, Arizona, Arkansas, California, Iowa, Michigan, Nebraska, Oklahoma, Wisconsin, and the United States; while the only state holding the contrary doctrine cited in this authority is the state of Illinois. We think the reasoning of the cases in support of the text announce the sound principle, and the wife need not join in the deed made to herself. The deed to her will convey the legal title to the land, but will not divest the husband to the homestead right so long as he maintains a home thereon.

The judgment of the court below is reversed, the demurrer overruled, and the case_ remanded, with leave to answer within thirty days from receipt of the mandate in the court below.

Reversed and remanded.