Opinion
No. 36204.
May 13, 1946.
1. DEEDS.
Restraint on alienation of a life estate, if valid, does not apply to a conveyance from life tenant to remaindermen, particularly where purpose of restraint on alienation of life estate is preservation of land for remaindermen.
2. REMAINDERS.
Where original deed conveyed land to grantee for life with remainder over to specified remaindermen with a further limitation over to grantee in the event of death of remaindermen without issue, and grantee conveyed to remaindermen her interest in the life estate, conveyance did not include original grantee's executory interest, which she had a right to convey, and hence remaindermen could not convey a fee-simple estate (Code 1942, sec. 831).
APPEAL from the chancery court of Madison county, HON. M.B. MONTGOMERY, Chancellor.
R.H. J.H. Thompson and Fulton Thompson, all of Jackson, for appellants.
The only question for consideration and decision in this case is whether or not the provisions contained in the deed from Fannie R. Jones so limited the right of alienation as to deprive Louise Powell Ricks of the power to convey her life estate to her children. If the aforesaid deed from Fannie R. Jones lawfully limited the right of alienation, then the deed from Louise Powell Ricks to her said two children was beyond her power to execute and did not convey to her children the life estate that had been vested in her by the deed from Fannie R. Jones. The question for decision is whether or not said deed places restrictions upon alienation and the extent thereof. Appellants take the position that the provisions in the deed executed by Fannie R. Jones, in the following words, "The said lands shall not be sold before the said child or children shall become 21 years of age, unless with the consent of the Chancellor in Vacation, or Chancery Court of said County, and if sold with such consent, the proceeds of such sale or sales shall be invested in the purchase of other lands or real estate, and the title thereto shall be taken in the name of said Sarah Poindexter Ricks and any other children that may be hereafter begotten and born as aforesaid, and it shall be the duty of the purchaser of the lands herein conveyed to see that said proceeds are so reinvested or he or they shall acquire no title to the said lands that he or they may purchase," were applicable solely in the event the lands in question were sold prior to the Ricks children becoming 21 years of age.
If we are correct in the above assumption, the Court need consider only the following provisions: "The said V.Q. Ricks and Louise Powell Ricks shall not even convey, mortgage or encumber their life estates in said lands unless with the consent of the Chancellor, or Chancery Court as aforesaid, and their said life estates in said lands shall never become responsible to any of their creditors or become liable for the debts of either of them. My intention being to preserve said lands, or the lands or real estate that may be purchased in lieu of them as aforesaid, for the said Sarah Poindexter Ricks and for any other children that may be born and begotten as aforesaid, if any, in Fee Simple, after the Life Estates of the said V.Q. and Louise Powell Ricks have terminated."
Referring to the deed from Fannie R. Jones and the provision, "The said V.Q. Ricks and Louise Powell Ricks shall not even convey, mortgage or encumber their life estates in said lands unless with the consent of the Chancellor, or Chancery Court as aforesaid . . .," it appears clear that; with the consent of the chancellor, or the chancery court, Louise Powell Ricks can convey the lands and the Court will observe in the prayer of the bill of complaint that the court is called upon to authorize her to convey the lands to her daughters, the complainants, complainants being the persons whom the said Fannie R. Jones sought to protect.
We have examined the authorities cited by counsel for appellee wherein Section 838 of the Code of 1942 is discussed, but we are relying upon an interpretation by this Court of the deed from Fannie R. Jones to Ricks and wife and upon this Court's determining therefrom that it was the intention of the said Fannie R. Jones, and that her sole purpose was to protect complainants, the only children born of the union of V.Q. Ricks and Louise Powell Ricks. Nothing could be clearer than the statement in the deed, "My intention being to preserve said lands . . . for the said Sarah Poindexter Ricks and for any other children that may be born and begotten as aforesaid, if any, in fee simple, after the life estates of the said V.Q. and Louise Powell Ricks have terminated." The life estate of V.Q. Ricks terminated with his death and, we submit, the life estate of Louise Powell Ricks terminated when she conveyed the lands to complainants, such conveyance having been made after it had become certain that no further child or children would be born of her union with V.Q. Ricks.
The court must effectuate the intention of Fannie R. Jones in the limitations and restraints against alienation that she inserted in the deed in question. The proper end of all rules of construction is to effectuate the intent of the parties; and the intent of the grantor is to govern when it can be ascertained.
Hart v. Gardiner, 74 Miss. 153, 20 So. 877.
It is submitted on behalf of appellants that the purpose and intent of Fannie R. Jones has been effectuated and complainants protected by being vested with a fee simple title to the lands in question, subject to no restrictions whatsoever; and the terms, stipulations, conditions and restrictions embodied in the deed from Fannie R. Jones have ceased to be effective and the two-donee statute which permits a person to make a conveyance of lands to a succession of two living donees is no longer applicable; and to hold said statute applicable, and a bar to the relief sought by complainants, this Court will have to disregard the practical and just solution of the situation between the parties. Furthermore, the two-donee statute must be read in connection with Section 831 of the Code of 1942, the sources of the provisions whereof can be traced back as far as the Code of 1857. Said section is in the following words: "Any interest in or claim to land may be conveyed to vest immediately or in the future, by writing signed and delivered; and such writing shall have the effect to transfer, according to its terms, the title of the person signing and delivering it, with all its instruments, as fully and perfectly as if it were transferred by feoffment with livery of seizin, notwithstanding there may be an adverse possession thereof."
Complainants contend that the trust created by the terms of the deed from Fannie R. Jones terminated when Louise Powell Ricks conveyed her entire interest in the life estate to complainants, her only children, they being the remaindermen.
Rowley v. American Trust Co. (Ga.), 45 A.L.R. 738; Nickell v. Handly, 10 Gratt. 336; Hutchinson v. Maxwell, 100 Va. 176, 57 L.R.A. 384, 93 Am. St. Rep. 944; Young v. Easley, 94 Va. 193, 26 S.E. 401; Sears v. Choate, 146 Mass. 395, 15 N.E. 786, 4 Am. St. Rep. 320; L'Hommedieu v. L'Hommedieu (N.J.), 131 A. 302; McKiernan v. McKiernan (N.J.), 74 A. 289; Culbertson's Appeal, 76 Pa. 542, 91 A. 503; Harrar's Estate (Pa.), 91 A. 503; Re White, 84 L.T.N.S. (Eng.) 199; 65 C.J. 360, Sec. 136; 21 C.J. 940; Perry on Trusts (6 Ed.), Secs. 386(a), 476; Hill on Trustees (2 Am. Ed.), 278; 1 Minor on Real Property 665, Sec. 588; Lewis on Trusts 1 Am. Ed. from 8 Eng. Ed.), 684; 28 Earl of Halsbury's Laws of England, p. 116.
See Natterstadt v. Title Guaranty T. Co., 252 F. 178; Browning v. Fiklin, 26 Ky. L. Rep. 470, 12 S.W. 714; Gorrell v. Alspaugh, 120 N.C. 362, 27 S.E. 85; Lee v. Oates, 171 N.C. 717, 88 S.E. 889, Ann. Cas. 1917A, 514; Culver v. Culver, 58 Ohio St. 172, 50 N.E. 505; Angle v. Marshall, 55 W. Va. 671, 47 S.E. 882; Thom v. Thom, 95 Va. 413, 28 S.E. 583.
See also Re Barber, 36 Misc. 433, 73 N.Y. Supp. 749; Metcalf v. Union Trust Co., 181 N.Y. 39, 73 N.E. 498, affirming 87 App. Div. 144, 84 N.Y. Supp. 183; Armour v. Murray, 74 N.J.L. 351, 68 A. 164; Guaranty Trust Co. of New York v. Cutting, 225 N.Y.S. 407, 130 Misc. 856; Fox v. Fox (Ill.), 95 N.E. 498; 65 C.J. 351, Secs. 124, 239 et seq.; 19 Am. Jur. 592, Sec. 139; 35 Am. Jur. 504; 2 A.L.R. 579; 23 R.C.L. 564; Restatement of the Law, Trusts, p. 1053, Sec. 315; Burby on Real Estate, p. 466, Sec. 291.
H.V. Watkins and R.C. Cannada, both of Jackson, for appellee.
It was the intention of the grantor, Fannie R. Jones, to convey these lands subject to certain restrictions on the alienability thereof.
The rules of construction to be applied in this case are clear. The entire instrument is to be read as a whole so as to get the overall intention of the grantor; no clause or sentence is to be omitted by the court in arriving at its decision.
Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; 16 Am. Jur. 533, 534, Secs. 168, 171.
The intention of the grantor is not to be selected or arrived at upon considering any particular clause or clauses where the instrument may contain repugnant or inconsistent clauses, if these clauses can be made to harmonize with the general purpose and scheme of the grantor as derived from the entire instrument.
Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Gulf S.I.R. Co. v. Patten, 180 Miss. 756, 178 So. 468; Sumter Lumber Co., Inc., v. Skipper, 183 Miss. 595, 184 So. 296; Federal Land Bank of New Orleans v. Cooper, 190 Miss. 490, 200 So. 729.
In arriving at the intention of the grantor, the instrument is not only to be read in its entirety in an effort to get the overall intent and purpose, but it is to be read without regard to any statute or any rule against perpetuities, and when this is done and the intention has been derived, then if any part of the instrument is contrary to any rule against perpetuities, or any statute, and thus will not be enforced by the courts, then this objectionable part is to be stricken if such can be done without completely doing away with the purpose of the instrument, and the instrument remains just as if the objectionable part had never been therein.
Another rule of construction to be applied in this cause is that the reason for the restrictions upon the alienation of these lands is of no importance provided the intention of the grantor is clear from an overall reading of the entire instrument.
Leigh v. Harrison, 69 Miss. 923, 11 So. 604; Henry v. Henderson, 101 Miss. 751, 58 So. 354; Lazard v. Hiller, 145 Miss. 449, 110 So. 855; Nicholson v. Fields, 111 Miss. 638, 71 So. 900; Schlater v. Lee, 117 Miss. 701, 78 So. 700; Reddoch v. Williams, 129 Miss. 706, 92 So. 831; Crawford v. Solomon, 131 Miss. 792, 95 So. 686; Smith v. Muse, 134 Miss. 827, 98 So. 436; Ford v. Smith, 162 Miss. 138, 137 So. 482; 21 R.C.L. 320, Sec. 54.
The life estates of V.Q. Ricks and Mrs. Louise Powell Ricks are subject to certain provisions pertaining to the alienability thereof.
The first provisions in this instrument following the granting clause and the description of the land is that the lands shall not be sold before the said child or children shall become 21 years of age, unless certain specifications and itemized things are complied with. The next provision is a very definite direction that V.Q. Ricks and Louise Powell Ricks shall not convey, mortgage or encumber their life estates in said lands unless the aforesaid provisions are complied with and that the life estates in the said lands never become responsible to any of the creditors or to become liable for the debts of either of them. The next provision expresses the intention of the grantor to preserve the said lands, or the lands or real estate purchased in lieu of them in compliance with the aforesaid provisions, for the children begotten of Louise Powell Ricks by V.Q. Ricks in fee simple after the life estates of the said V.Q. Ricks and the said Louise Powell Ricks have terminated. The last provision in this instrument is a direction that if all the children begotten of Louise Powell Ricks by V.Q. Ricks die without issue before the said V.Q. Ricks and Louise Powell Ricks, then the said V.Q. Ricks and Louise Powell Ricks, or the survivor of them, should take fee simple title in the land with no restrictions.
These four provisions are to be read in toto in arriving at the intention of the grantor. The grantor provided for the protection of the estate of the children and then provided for the protection of the estate of V.Q. Ricks and Louise Powell Ricks. If the grantor had not had in mind the protection of the life estates of V.Q. Ricks and Louise Powell Ricks, then there would have been no need whatsoever for the second provision. V.Q. Ricks and Louise Powell Ricks became vested with life estates only and nothing that they could do could in any way affects the vested remainder in fee which belonged to the children begotten of Louise Powell Ricks by V.Q. Ricks. This was clearly and solely a definite provision for the benefit and protection of the life estates of V.Q. Ricks and Louise Powell Ricks and provided that these life estates could not be conveyed, mortgaged, or encumbered by the said Louise Powell Ricks or V.Q. Ricks, which is exactly what Mrs. Louise Powell Ricks attempted to do by her conveyance of the said land to Sara Poindexter Ricks and Fannie J. Ricks Hamlin. The third provision clarifies even more this intention by stating that the intention of the grantor was to preserve the said lands, or lieu lands, for the children after the life estates of the said V.Q. Ricks and Louise Powell Ricks have terminated. The fourth provision then provides for the eventuality of all of the children of the said Louise Powell Ricks and V.Q. Ricks dying without issue before both, V.Q. Ricks and Louise Powell Ricks, have died. The provision here is that if this evenuality happens, the lands are to revert to V.Q. Ricks and Louise Powell Ricks, or the survivor. Thus, the intention of the grantor is made even more manifest and it is immediately apparent that the only interpretation of this instrument that would give effect to this provision and the other three provisions is the interpretation that the life estates of V.Q. Ricks and Mrs. Louise Powell Ricks are to be terminated only by death; otherwise, should Sara Poindexter Ricks and Fannie J. Ricks Hamlin both die without issue before Mrs. Louise Powell Ricks, then, if Mrs. Louise Powell Ricks had already conveyed her life estate, the life estate could not possibly revert to her.
The children begotten of Mrs. Louise Powell Ricks by V.Q. Ricks cannot convey this property even after they have reached the ages of 21 unless certain provisions are complied with.
Applying the same rules of construction, it appears that the grantor of this instrument intended that the said lands should not be sold before the children of Louise Powell Ricks by V.Q. Ricks reached the age of 21 years unless done with the consent of the chancellor in vacation, or the chancery court of said Madison County, but after reaching this age, the consent of the chancellor, or chancery court, was no longer necessary. However, the proceeds of any sale of these lands must still be invested in the purchase of other lands or real estate and the title thereto taken in the name of Sara Poindexter Ricks and Fannie J. Ricks Hamlin, and it is the duty of the purchaser of said lands to see that the proceeds are so reinvested or he or they acquire no title to the said lands. The fourth provision in the instrument provides that if Sara Poindexter Ricks and Fannie J. Ricks Hamlin die without issue before V.Q. Ricks and Louise Powell Ricks, then the said V.Q. Ricks and Louise Powell Ricks and the survivor of them shall take fee simple title to the said lands. Thus if Sara Poindexter Ricks and Fannie J. Ricks Hamlin are permitted to convey these lands and the purchaser not required to see that the proceeds thereof are reinvested in other lands, then, upon the happening of this eventuality, the title to these lands or lieu lands would not pass to V.Q. Ricks and Louise Powell Ricks or the survivor. Therefore, it is clearly the intention of the grantor that these lands, or lands purchased in lieu thereof, shall be kept intact at least until the death of V.Q. Ricks and Mrs. Louise Powell Ricks.
The intention of the grantor was within legal bounds and therefore must be enforced by this Court.
The rule against perpetuities is not applicable.
41 Am. Jur. 50, 73-74; Gray, Rule Against Perpetuities (4 Ed.), p. 194, Sec. 205; Griswold, Spendthrift Trust, p. 259, Sec. 280, p. 268, Sec. 292, p. 271, Sec. 294.
Neither the present Mississippi "fee-tail" statute nor the Mississippi statute at the time of the conveyance is applicable.
Henry v. Henderson, 103 Miss. 48, 60 So. 33; Redmond v. Redmond, 104 Miss. 512, 61 So. 552; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Reddoch v. Williams, 129 Miss. 706, 92 So. 831; Stigler v. Shurlds, 131 Miss. 648, 95 So. 635; Code of 1906, Sec. 2765, Hemingway's Code of 1917, Sec. 2269; Code of 1942, Sec. 838.
The restrictions set out in this instrument are reasonable and must be enforced by the courts of this state.
Crawford v. Solomon, 131 Miss. 792, 95 So. 686; Ford v. Smith, 162 Miss. 138, 137 So. 482; Bratton v. Graham, 146 Miss. 246, 111 So. 353.
Since the deed from Sara Poindexter Ricks and Fannie J. Ricks Hamlin, complainants herein, attempted to convey a fee simple and merchantable title while they only owned remainders subject to the life estate of Louise Powell Ricks, and further since this remainder was subject to that provision in the deed from Fannie R. Jones requiring the purchaser thereof to see that the proceeds of the sale were invested in other lands, they have not tendered to T.H. Riddell, defendant herein, a fee simple and merchantable title. Therefore, a specific performance of the contract for the sale and purchase of said lands must be denied.
This is an appeal from a decree dismissing a bill of complaint by which the appellants sought to obtain the specific performance of a contract by the appellee to purchase a tract of land from them. The contract for the sale and purchase of the land recites that, "It is understood and agreed that the Sellers are to have a period of 30 days from and after the date hereof to tender to the Buyer a warranty deed with full and definite legal description of the property, in accordance with the terms of this contract and tender to the Buyer a fee simple and merchantable title to this property, and upon the tender of said merchantable title and warranty deed drawn in accordance with the contract herein, within said time, the said T.H. Riddell shall pay to the Sellers the full purchase price of said lands."
The appellants thereafter tendered the appellee a warranty deed to the land, which he declined to accept. They then filed this bill of complaint against the appellee for the specific performance of his contract of purchase, tendering therewith their warranty deed to the land. The case was tried on bill, answer and agreed statement of facts.
The question presented is whether or not the deed tendered by the appellants would vest in the appellee, "a fee simple and merchantable title to this property."
The land was formerly owned by Mrs. Fannie R. Jones, who executed a deed thereto on the 14th day of July, 1913. After the execution of this deed by Mrs. Jones, one other child, Fannie J. Ricks Hamlin, was born to V.Q. and Louise Powell Ricks. V.Q. Ricks died on the 23d day of November, 1945. His widow, Louise Powell Ricks, is still living, but the time has passed in which she could have a child by the said V.Q. Ricks.
"In Consideration of the love and affection which I bear for V.Q. Ricks and his wife, Louise Powell Ricks, and for their present and future children, if they shall have more, I, Fannie R. Jones, do hereby convey and warrant unto the said V.Q. Ricks and Louise Powell Ricks for and during their natural lives, with remainder in fee to Sarah Poindexter Ricks, their present child, and to any other child or children that may be begotten by the said V.Q. Ricks of the said Louise Powell Ricks, the following described lands in Madison County, State of Mississippi, towit: — . . .
"The said lands shall not be sold before the said child or children shall become 21 years of age, unless with the consent of the Chancellor in Vacation, or Chancery Court of said County, and if sold with such consent, the proceeds of such sale or sales shall be invested in the purchase of other lands or real estate, and the title thereto shall be taken in the name of said Sarah Poindexter Ricks and any other children that may be hereafter begotten and born as aforesaid, and it shall be the duty of the purchaser of the lands herein conveyed to see that said proceeds are so reinvested or he or they shall acquire no title to the said lands that he or they may purchase. The said V.Q. Ricks and Louise Powell Ricks shall not even convey, mortgage, or encumber their life estates in said lands unless with the consent of the Chancellor, or Chancery Court as aforesaid, and their said life estates in said lands shall never become responsible to any of their creditors or become liable for the debts of either of them. My intention being to preserve said lands, or the lands or real estate that may be purchased in Lieu of them as aforesaid, for the said Sarah Poindexter Ricks and for any other children that may be born and begotten as aforesaid, if any, in Fee Simple, after the Life Estates of the said V.Q. and Louise Powell Ricks have terminated. But if the said child, and any other children that may be begotten as aforesaid, should all die without issue before they do, then in such case the said V.Q. Ricks and Louise Powell Ricks and the survivor of them shall take the Fee Simple title to said lands, with all of the Rights of Conveyance and disposal, the same as any other owner of lands or real estate in fee, without limitation or restriction.
"Witness my signature and seal this the 14th day of July, 1913.
"(Signed) Fannie R. Jones (Seal)
"State of Mississippi,
"Madison County.
"Personally appeared before me, Robert H. Powell, a Notary Public in and for the City of Canton, said County and State, The within named Fannie R. Jones, who acknowledged that she signed, sealed, and delivered the foregoing instrument of writing on the day and year therein mentioned as her act and deed.
"Witness my signature and official seal this the 14th day of July, 1913.
"(Signed) Robert H. Powell
"Notary Public (Seal)."
The provision in Mrs. Jones' deed, prohibiting the sale of this land before Sara Poindexter Ricks and Fannie J. Ricks Hamlin became 21 years of age, may be left out of view, as they both have now passed that age.
That deed conveys (1) a life estate in the land to V.Q. and Louise Powell Ricks; (2) with remainder to Sara Poindexter Ricks and, as the event determined, to Fannie J. Ricks Hamlin; and (3) in event they should die without issue, then in fee simple to V.Q. and Louise Powell Ricks and the survivor of them; (4) restrains the alienation by V.Q. and Louise Powell Ricks of their life estate in the land; (5) in order "to preserve said land . . . for the said Sara Poindexter Ricks and, as the event determined, for Fannie J. Ricks Hamlin in fee simple after the life estates of the said V.Q. and Louise Powell Ricks have terminated."
After the death of V.Q. Ricks, Louise Powell Ricks executed a warranty deed to her two daughters, Sara Poindexter Ricks and Fannie J. Ricks Hamlin, the remaindermen, to "all of my right, title and interest, being a life estate, in and to," the land described in the deed executed by Mrs. Jones.
In support of the decree of the court below, the appellee says that the restraint in the deed executed by Mrs. Jones on the alienation by V.Q. and Louise Powell Ricks of the life estates conveyed to them in that deed, is valid, and therefore the deed from Mrs. Louise Powell Ricks to Sara Poindexter Ricks and Fannie J. Ricks Hamlin, the remaindermen, is void. With this we are unable to agree. Assuming, but for the purpose of the argument only, that this restraint on the alienation of this life estate is valid, under Crawford v. Solomon, 131 Miss. 792, 95 So. 686; Bratton v. Graham, 146 Miss. 246, 111 So. 353; and Ford v. Smith, 162 Miss. 138, 137 So. 482, the question then is, Does it apply to a sale of the life estate to the remaindermen?
The object which the grantor, Mrs. Jones, desired to accomplish by this restraint on the alienation of this life estate, that is, the preservation of the land for the remaindermen, will be accomplished in the most effectual way by the sale of the life estate to the remaindermen. Consequently, instead of running counter to the grantor's intention, this sale is in furtherance thereof, and therefore the restraint on the alienation of the life estate does not here apply.
This, however, does not result in the appellant's having a fee-simple title to the land. Because of the limitation over to Mrs. Louise Powell Ricks on the death of the remaindermen without issue, they have only a fee, determinable on the happening of the stated event; and should that event happen, the fee to the land will then vest in Mrs. Louise Powell Ricks. Under this limitation over, Mrs. Louise Powell Ricks has an executory interest in the land, which, under Sec. 831, Code of 1942, she has the right to convey. Alexander v. Richardson, 106 Miss. 517, 64 So. 217; 1 Tiff., Real Property (2d Ed.), 590. Her deed to the remaindermen, however, is expressly limited to her life estate, and therefore does not include this executory interest. Consequently, the deed which the appellants offered to make to the appellee will not vest him with a fee-simple, merchantable title to the property.
Affirmed.