Opinion
SC 1140.
August 21, 1975.
Appeal from the Circuit Court, Sumter County, Claude D. Neilson, J.
Atchley, Atchley Cox, Chattanooga, Tenn., Erskine R. Lindsey and Hogan, Smith Alspaugh, Birmingham, for appellants.
If there is any conflict between a granting clause and a habendum clause in a deed, the granting clause governs. Authorities: Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718; Porter v. Henderson, 203 Ala. 312, 82 So. 668; Lowery v. May, 213 Ala. 66, 104 So. 5. There must be apt and appropriate words of grant from any person in a deed to constitute that person a grantor therein. Agricultural Bank v. Rice, 4 How. (U.S.) 225, 11 L.Ed. 949; Harrison v. Simons, 55 Ala. 510; Brewton v. Watson, 67 Ala. 121; Webb v. Mullins, 78 Ala. 111; Long v. Holden, 216 Ala. 81, 112 So. 444; King v. Coffee, 222 Ala. 245, 131 So. 792; Sanford v. Alabama Power Co., 256 Ala. 280, 54 So.2d 562. Where there is an express enumeration of grantors in a deed, the signature of the deed by a person not named as a grantor does not constitute that person a grantor. Agricultural Bank v. Rice, 4 How. (U.S.) 225, 11 L.Ed. 949; Harrison v. Simons, 55 Ala. 510; Hammond v. Thompson, 56 Ala. 589; Madden v. Floyd, 69 Ala. 221; Fite, et al. v. Kennemer, 90 Ala. 470, 7 So. 920; Sheldon, et al. v. Carter, 90 Ala. 380, 8 So. 63; Dinkins v. Latham, 154 Ala. 90, 45 So. 60. It was the legislative intent, by Title 47, Section 19, as originally written, to abolish joint tenancies with rights of survivorship. Title 47, Section 19, 1940 Code of Alabama; Parsons v. Boyd, 20 Ala. 112; Walthall v. Goree, 36 Ala. 728; Nunn v. Keith, 289 Ala. 518, 268 So.2d 792. Provisos or exceptions added to a general legislative enactment are to be strictly construed in order to effectuate the general legislative intent. Umble v. State, 207 Ala. 508, 93 So. 531; Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626; State v. Praetorians, 226 Ala. 259, 146 So. 411; Nunn Keith, 289 Ala. 518, 268 So.2d 792 (Dissenting Opinion); State Farm Mut. Auto Ins. v. Martin, 292 Ala. 103, 289 So.2d 606. In order to be effective in creating a joint tenancy with right of survivorship, a deed must contain an express grant to two or more persons with right of survivorship, or an express grant from the owner to himself and one or more other persons with right of survivorship. Title 47, Section 19, 1958. Recompiled Code of Alabama; First National Bank v. Lawrence, 212 Ala. 45, 101 So. 663; Nunn v. Keith, 289 Ala. 518, 268 So.2d 792.
Grady W. Agee, Henry L. Klein, Memphis, Tenn., Pruitt Pruitt and W. Roscoe Johnson, III, Livingston, Powell Lipscomb, Bessemer, for appellees.
Section 19 of Title 47, of the Recompiled Code of Alabama, as amended, substantially revives common law joint tenancies and recognizes joint tenants with right of survivorship differing from the common law estate only insofar that intention to have right of survivorship must be clearly expressed in the instrument of conveyance, and that the common law unity of time requirement is eliminated. Alabama Code Title 47, § 19 (1973); Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972); 48 C.J.S. Joint Tenancy § 1.b., page 910. The real inquiry in construing the terms of a deed is the ascertainment of the intention of the parties thereto and if that intention can be ascertained from the entire instrument, resort to arbitrary rules of construction is not required. Wilkins v. Ferguson, 294 Ala. 25, 310 So.2d 879 (1975); Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973); Kettler v. Gandy, 270 Ala. 494, 119 So.2d 913 (1960); Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127 (1956). In the absence of fraud or mistake, it is only where an instrument is doubtful of meaning, or its language ambiguous, that the Court may look beyond the four corners of the instrument to give clarity and specificity of meaning. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973); Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970); Taylor v. Hancock, 227 Ala. 645, 151 So. 596 (1933). There exists a presumption of the correctness of a judgment grounded upon the factual findings of a trial court, and such judgment will not be disturbed on appeal in the absence of clear and palpable error below. Johnson-Rast Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885, 889 (1975); Oliver v. Campbell, 292 Ala. 413, 295 So.2d 400, 402 (1974); Elliott v. Burch, 293 Ala. 244, 301 So.2d 557, 559 (1974); Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847, 864 (1973). A joint tenancy with right of survivorship is created by an instrument which expresses the intent of the parties that a joint tenancy is thereby created and that such tenancy is with right of survivorship, or other words used therein showing such intention, then upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. Code of Alabama, Tit. 14, § 10 (Recompiled 1958).
This is an appeal from a decree of the Circuit Court of Sumter County, holding that an instrument between Sadie T. Phelps and Mary E. Hill, on 13 February, 1963, created a joint tenancy with right of survivorship. We affirm.
Because the construction of the deed is the principal issue, we show it in its entirety:
"STATE OF ALABAMA
COUNTY OF SUMTER
"KNOW ALL MEN BY THESE PRESENTS: That this Indenture made and entered into on this day by and between Sadie T. Phelps, party of the first part, and Mary E. Hill, party of the second part, W I T N E S S E T H:
"THAT, WHEREAS, the said party of the first part owns and is in possession of a tract of land located in Sumter County, Alabama, which will be hereinafter described. The party of the second part is a cousin of the party of the first part, and the parties hereto have grown up together, are closely associated and devoted to each other. It is the desire of the party of the first part that the party of the second part share with her in the ownership and possession of the said hereinafter described property, and that the title thereto pass to the survivor, in fee simple, at the death of the other.
"NOW, THEREFORE, the said party of the first part, for and in consideration of the love and affection which the said party of the first part has for the said party of the second part, the mutual benefits to be derived from the execution and delivery of these presents, and the sum of ONE AND NO/100 DOLLAR, cash to her in hand paid by the said party of the second part, the receipt of all of which is hereby acknowledged, has granted, bargained, sold and conveyed, and does hereby grant, bargain, sell and convey unto the said party of the second part, such interest as is appropriate for the said parties hereto to own, have and hold the said hereinafter described land equally, jointly, as tenants in common, with equal rights and interest in said land, and to the survivor thereof, in fee simple, said land being situate, lying and being in the County of Sumter, State of Alabama, and particularly described as follows, to-wit:
"The E 1/2 of Section 11; The W 1/2 of W 1/2 of Section 12; The W 1/2 of the W 1/2 of E 1/2 of Section 13; The NE 1/4, E 1/2 of NW 1/4 and NE 1/4 of SE 1/4 of Section 14, all in Township 16 North, Range 4 West, containing 1240 acres, more or less.
"Together with all and singular the tenements, hereditaments, rights, ways, privileges and appurtenances thereunto belonging or in anywise appertaining.
"TO HAVE AND TO HOLD the same unto the said parties hereto, equally, jointly, as tenants in common, with equal rights and interest for the period or term of their lives, and to the survivor thereof at the death of the other.
"IN TESTIMONY WHEREOF, the said parties hereto have hereunto set their hands and seals on this the 13 day of February, 1963.
Sadie T. Phelps (SEAL) -------------------------- Party of the First Part
Mary E. Hill (SEAL) -------------------------- Party of the Second Part"
We read the granting clause as creating a joint tenancy, in compliance with § 19, Title 47, Code of Alabama. Section 19, as amended, recognizes joint tenancy, with right of survivorship in realty and personalty. The statute requires intent of survivorship expressed in the instrument of conveyance, and eliminates common law unity of time. Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).
Sadie T. Phelps did not convey to herself and Mary E. Hill, but we are of the opinion the intent is clear, she created a joint tenancy, with right of survivorship, and no arbitrary rule of construction is required. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973). The statutory words, "and in which instruments it clearly appears that the intent is to create such a survivorship is . . ." applicable in this case.
The remaining issue is whether Sadie T. Phelps was of sound mind when she signed the conveyance. On conflicting evidence, the trial judge found she was. Following the holdings of numerous decisions of this court on the presumption of correctness of the trial judge in ore tenus hearings, we do not disturb his findings on this issue. Our review of the evidence does not show he was palpably and clearly wrong.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.