Summary
In Tanner v. Foreman, 212 Miss. 355, 54 So.2d 483, there was involved a deed with the following provision: "It is understood and agreed by and between the parties hereto, that the grantor, J.R. Foreman, herein, reserves the right of possession, free use and occupation of the above described land as long as he lives, and upon the death of the said J.R. Foreman the said grantee, W.W. Foreman, to have the possession and occupation of said land as well as the land hereinabove described."
Summary of this case from Rodgers v. RodgersOpinion
No. 38067.
October 22, 1951.
1. Deeds — construction — intent of grantor.
Where the language of a deed is clear and unambiguous, no resort to rules of construction is necessary to ascertain its meaning, and the intent of the grantor must be judged by the language which he employs.
2. Deeds — title vested in grantee subject only to reservation of right of possession during grantor's life.
An instrument must be given the effect of a valid deed when executed and acknowledged in the form of a deed, and duly delivered and the consideration paid, and by its plain terms immediately vested title in the grantee subject only to the reservation of the right of possession in the grantor during his life. Sec. 831 Code 1942.
3. Witnesses — claimant against estate of deceased person — appeal — when merely cumulative no reversal.
Where there were other witnesses whose competency was not challenged and whose testimony amply supported the execution and delivery of the instrument in question and the payment of the consideration therefor, the fact that the grantor in the deed was permitted after the death of the grantor to testify to the same effect will not require a reversal when his testimony was largely cumulative of that of the other witnesses, even if the grantee might be held an incompetent witness.
Headnotes as revised by Holmes, C.
APPEAL from the chancery court of Smith County; NEVILLE PATTERSON, Chancellor.
Edwards Edwards and L.D. Pittman, and Billie C. Little and R.C. Russell, for appellant.
The trial court erred in admitting parol evidence over the objection of the appellant to explain the nature of the instrument, which was in form a deed but testamentary in character, as said instrument was not ambiguous, but susceptible of interpretation from its own language.
As shown by the record W.W. Foreman was permitted to testify over the objection of the appellant as to the nature of the instrument and also to establish his claim against the estate. Burnett, et al. v. Smith, 93 Miss. 566, 47 So. 117; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A.L.R. 5.
We contend that this instrument is a deed in form but testamentary in character, that it was intended as a will in the light of the evidence, the competent evidence, in the case. Coulter v. Carter, 26 So.2d 344; Mims v. Williams, 192 Miss. 866, 70 So.2d 822; Wall v. Wall, 30 Miss. 91; Sartor v. Sartor, 39 Miss. 760; Simpson v. McGee, 112 Miss. 344, 73 So. 55, 11 A.L.R. 4.
R.S. Tullos and J.D. Martin, for appellee.
Appellant contends that this deed is testamentary in character and not valid as a deed of conveyance, and cites many cases in support of her contentions but none is the law applicable to the instrument involved in this lawsuit, as we see it. We contend that the deed in question was a bona fide transaction, and conveyed the land therein described at the time of its execution and delivery because if the grantor had not intended to convey the land he would not have had anything to reserve from the operation of the deed, and this fact is sufficient to show that the land was conveyed and that he intended to so convey; that the deed itself shows that the land was to be conveyed and a life estate reserved unto the grantor; and the deed itself shows that the grantors received $2,000.00 cash in consideration for the said land thus conveyed, and if it had not been the intention of the grantors to convey the land, we contend that they would not have accepted the said consideration for this land. The very fact that the grantor accepted the $2,000.00 in payment of said land, and that the grantee paid this sum as the purchase price therefor, we think is sufficient to convince this court that the instrument was intended to be a deed of conveyance and is a deed. It is a well settled principle of law that the intention of the parties to a deed is to govern its construction, and we cite the following cases in support of our contention. Yazoo M.V.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393; Goff v. Avent, 122 Miss. 86, 84 So. 134; Dunn v. Stratton, 106 Miss. 1, 133 So. 140.
Appellant cites the case of Coulter, et al. v. Carter, et al., in support of her contention that the deed in question is testamentary in character and not valid as a deed. We contend that this case, which is cited in 26 So.2d 344, is not applicable to the facts in this case. In the case cited by appellant there was no present interest whatsoever conveyed until after the death of the grantors and the Court held that the instrument was testamentary in character. Whereas in the case at bar the instrument in question conveyed a present interest in and to the land therein described, the grantor reserving unto himself a life estate, including the right of possession, free use and control thereof, but conveying the title to said land unto the grantee, W.W. Foreman, the appellee herein. And we further contend that all of the cases cited by appellant in support of such contention are not applicable to the facts in this case.
The testimony of Mrs. W.W. Foreman, Mrs. Falba Foreman, Kenneth Hernbloom, and Mrs. Hernbloom is practically the same as that of W.W. Foreman, and appellant does not contend that they are not competent witnesses, and should she do so in her reply brief, we cite Barry v. Sturdivant, 53 Miss. 490; Saffold v. Horne, 72 Miss. 470, 18 So. 433.
On July 29, 1927, J.R. Foreman and his wife, Mrs. F.A. Foreman, executed the following written instrument:
"The State of Mississippi, Smith County.
"In consideration of Two Thousand Dollars cash in hand paid the receipt whereof is hereby acknowledged we convey and warrant to W.W. Foreman the land described as The NE 1/4 of NW 1/4 and SW 1/4 of NW 1/4 Section 13, and SE 1/4 of NE 1/4 Section 14, all in Township 1 North, Range 7 East.
"It is understood and agreed by and between the parties hereto, that the grantor, J.R. Foreman, herein, reserves the right of possession free use and occupation of the above described land as long as he lives, and upon the death of the said J.R. Foreman the said grantee, W.W. Foreman, to have the possession and occupation of said land as well as the land herein above described, situated in the County of Smith, in the State of Mississippi.
"Witness our signature, This the 29 day of July, 1927.
"J.R. Foreman her Mrs. F.A. x Foreman mark
"State of Mississippi, Smith County.
"This day personally appeared before me, the undersigned Circuit Clerk of the County of Smith, in said State, the within named J.R. Foreman and Mrs. F.A. Foreman, wife of the said J.R. Foreman who acknowledged that they signed and delivered the foregoing instrument on the day and year therein mentioned.
"Given under my hand and official seal at Raleigh, this the 29 day of July, 1927.
"C.A. Simmons Circuit Clerk"
At the time of the execution of the instrument the grantor, J.R. Foreman, was the owner of the lands therein described. He died intestate on November 17, 1946. The aforesaid instrument was filed for record in the office of the Chancery Clerk of Smith County, Mississippi, on the 30th day of November, 1946, and was duly recorded on the 10th day of December, 1946.
On November 20, 1947, the appellant, Mrs. Birdie Tanner, a daughter of J.R. Foreman, deceased, and one of his heirs at law, filed her original bill in the Chancery Court of Smith County against her brother, W.W. Foreman, and other heirs at law of the said deceased, seeking to cancel the aforesaid instrument on the ground that it was not a deed but was testamentary in character and therefore inoperative because not executed as a will is required to be executed.
Appellant prosecutes this appeal from an adverse decree of the court below dismissing her original bill.
The overwhelming weight of the evidence establishes the fact that said instrument was duly executed by the grantors and immediately delivered to the grantee and the consideration therefor paid.
(Hn 1) The language of the instrument is plain and unambiguous and no resort to rules of construction is necessary to ascertain its meaning. The intent of the grantor must be judged by the clear and unambiguous language which he employs. Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892, 6 So.2d 318.
(Hn 2) The instrument was executed and acknowledged in the form of a deed and duly delivered and the consideration therefor paid, and by its plain terms immediately vested the title to the land in the grantee, subject only to the reservation of the right of possession in the grantor, J.R. Foreman, so long as he lived. The instrument must, therefore, be given effect as a valid deed. Sec. 831 of the Code of 1942; Stubblefield v. Haywood, 123 Miss. 480, 86 So. 295; Graham v. Triplett, 148 Miss. 299, 114 So. 621; Hald v. Pearson, 197 Miss. 410, 20 So.2d 71; Watts v. Watts, 198 Miss. 246, 22 So.2d 625.
(Hn 3) Appellant argues also that W.W. Foreman, the grantee in the instrument and an heir at law of J.R. Foreman, deceased, was incompetent as a witness because his testimony was in defense of a claim against the estate of a deceased person, and that the chancellor erred in permitting him to testify over the objection of the appellant. We need not pass upon the competency or incompetency of this witness since his testimony was largely cumulative of that of other witnesses whose competency was not challenged and whose testimony amply established the execution and delivery of the instrument and the payment of the consideration therefor. Without regard to the competency or incompetency of the witness, W.W. Foreman, we find no reversible error in the action of the chancellor in permitting him to testify.
We are accordingly of the opinion that the decree of the chancellor in dismissing appellant's original bill was correct and should be and is affirmed.
Affirmed.
The above opinion is adopted as the opinion of the Court and for the reasons therein indicated, the judgment of the court below is affirmed.