Opinion
No. 32409.
November 23, 1936.
WILLS.
Instrument, reciting consideration of one dollar and love and affection, and purporting to convey title to house and lot, but containing provision that deed should not take effect during lifetime of grantor but only on her death held "will" and not "deed," since instrument in form of deed not to become effective until death of maker is a will and not a deed.
APPEAL from the chancery court of Lowndes county. HON. T.P. GUYTON, Chancellor.
Loving Loving, of Columbus, for appellants.
The deed is based on a good consideration and the granting clause used in the deed is in the following words: "has granted bargained sold and conveyed and by these presents does grant bargain sell and convey to the party of the second part his heirs and assigns," etc.
It will be observed from these words that there is no reservation of a life estate, nor is there anything in this granting clause to indicate that the grantor expected or intended to do otherwise than to grant a present interest in this real estate, that the wording was the granting of an estate in praesenti, and if this is what the granting clause means and an estate in praesenti passed at the execution and delivery of the instrument, then the instrument would be a valid deed of conveyance.
As far as we have been able to find, no deed written in the terms in which this deed is written, has been passed on by this honorable court, in an action of this kind, but this honorable court has held many deeds that were not as emphatic in terms as this, to be deeds of conveyance and not instruments testamentary in character.
The last sentence in the deed in the habendum clause reads as follows: "Provided, nevertheless, that this deed shall not take effect or be of any force whatever during the lifetime of the said Alice A. Buffington, but immediately upon her death the same shall be of full force and effect." This is merely a clause in which she reserves unto herself, the possession of the property during her life, there is no reference whatever as to title in this sentence. It is a reservation of the life estate in the habendum clause, which this honorable court says can be done.
Hart v. Gardner, 74 Miss. 153, 20 So. 877; Johnson v. Seely, 139 Miss. 60, 103 So. 499.
We submit that the granting features of the deed in the case at bar in which reference to the granting of title, the vesting of title, and the warranty of title, are much stronger than in the cited case.
Wall v. Wall, 30 Miss. 91; Stubblefield v. Haywood, 123 Miss. 480, 86 So. 295.
The question presented is whether this instrument is a deed. It is ineptly drawn, but by careful consideration the conclusion is that it reserves to the grantors a life estate and until the death of the surviving of the grantors. It is settled in this state that the test is whether the instrument is to have effect as an instrument of conveyance at the time of its execution, though the enjoyment of the estate may be postponed to a fixed time, or it may become effective at the death of the grantor or grantors, or at any time in the future, whether the conveyance, or instrument, as such, is to take effect at or after death. And that it seems clear in construing all provisions together that the intention of the parties was to reserve a life estate in the grantors and to convey the remainder to the grantee, the grantee to come into possession or use of the property at the death of the surviving grantor, and that the chancellor was in error in holding the deed invalid.
Stubblefield v. Haygood, 123 Miss. 480, 86 So. 295; Brinson v. Sandifer, 42 So. 89; Rogers v. Rogers, 43 So. 434.
Sturdivant Holloman, of Columbus, for appellee.
We respectfully submit that the instrument is not a deed, but that it is testamentary in character, and that the decree of the lower court should therefore be affirmed.
The rule that governs in this case is clearly and concisely stated by this court in the recent case of Tapley v. McManus, 168 So. 51, decided since the rendition of the decree in the lower court in this case, in the following language: "This court has several times, heretofore, held that an instrument, though in form a deed, which provides that the instrument itself shall not become effective until the death of the maker is testamentary in character and, therefore, cannot operate as a deed."
The following cases are all squarely and directly in point, irresistibly stamp the instrument at bar as being testamentary in character and, therefore, not a valid deed, and compel the conclusion that the decree of the lower court in this case should be affirmed.
Cunningham v. Davis, 62 Miss. 366; Simpson v. McGee, 112 Miss. 344, 73 So. 55; Cox v. Reed, 113 Miss. 488, 74 So. 330; Kelley v. Covington, 119 Miss. 658, 81 So. 485; Knight v. Knight, 133 Miss. 74, 97 So. 481; Tapley v. McManus, 168 So. 51; Sartor v. Sartor, 39 Miss. 772; Thomas v. Byrd, 112 Miss. 692, 73 So. 725.
There is involved in this case the title to a house and lot situated in the city of Columbus in Lowndes county. The decision of the case turns upon whether the instrument under which appellants claimed title is a deed or a will. The consideration in the instrument was one dollar and love and affection. It purports to convey the title to the grantees, their heirs and assigns, "together with appurtenances to said premises belonging, and all estate title and interest both at law and equity of the party of the first part in the same. To have and to hold the said granted premises with the appurtenances unto the party of the second, his heirs and assigns forever in fee simple," and concludes with the following proviso:
"Provided, nevertheless, that this deed shall not take effect or be of any force whatever during the lifetime of the said Alice A. Buffington, but immediately upon her death the same shall be of full force and effect." The chancellor held that the instrument was a will — not a deed. Under the decision in Tapley v. McManus (Miss.), 168 So. 51, and the previous decisions of our court referred to in that opinion, the chancellor could have reached no other conclusion. The proviso, in plain and unambiguous terms, delayed the taking effect of the instrument until the death of the grantor. It was held in the cases referred to that an instrument in the form of a deed not to become effective until the death of the maker is a will, and not a deed.
Affirmed.