Opinion
No. 32251.
May 11, 1936.
1. DEEDS. Wills.
Instrument in form of deed, not to become effective until death of maker, is testamentary and cannot operate as a deed, so that maker of such instrument could have it canceled on ground that grantee was attempting to interfere with maker's use and occupation of land (Code 1930, sec. 2110).
2. WILLS.
In instrument conveying land to take effect after maker's death, habendum clause that grantee should have and hold premises to her, her heirs and assigns forever, did not modify express testamentary provision so as to convey present interest, but only limited and defined estate granted (Code 1930, sec. 2110).
3. WILLS.
Conveyances by instruments to take effect at maker's death are not within rule that conveyances may be made to vest in future, since instruments conveying interests to vest in future must take effect in praesenti, and maker must part with all right to thereafter dispose of land otherwise (Code 1930, sec. 2110).
APPEAL from chancery court of Copiah county. HON. V.J. STRICKER, Chancellor.
A.A. Cohn, of Brookhaven, and L. Barrett Jones, of Jackson, for appellant.
The rule governing cases of this kind is to ascertain the intention of the executor of the instrument and also to give the instrument an interpretation that will make it potent, if possible, and to construe it more strongly against the executor.
In addition to that, it seems to be agreed upon by all authorities that, if a present interest is conveyed, there is no question about the instrument being a deed.
The cases of Cunningham v. Davis, 62 Miss. 366; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Thomas v. Byrd, 112 Miss. 692; Williams v. Green, 128 Miss. 453; Barksdale v. Banks, 92 Miss. 176; Cox v. Reed, 113 Miss. 488, have no application to the instant case as there was no habendum clause in the deeds in said cases. The instruments in the above cases made a grant and stated that the instrument did not take effect until after the death of the grantor, and is apparent that no present interest could be conveyed by said instruments. However, it is seen that the trend of the courts today, not only in Mississippi but in other states, is to interpret the instruments so that efforts on the part of the grantor or executor to convey will not be in vain.
Stubblefield v. Haywood, 123 Miss. 480, 86 So. 295; Graham v. Triplett, 114 So. 621.
In determining whether or not a writing is a deed, the controlling question and the ultimate object of inquiry should in every case, be: What was the intent of the maker? If it was to postpone title and enjoyment until after his death, the writing is not a deed; if it was to confer title but to postpone the enjoyment thereof, it is a deed.
Trumbauer v. Rust, 36 S.D. 301, 154 N.W. 801; Stroup v. Stroup, 140 Ind. 179, 27 L.R.A. 523, 39 N.E. 864.
Unless the clear intent of the maker is to the contrary, a writing, not so executed as to be good as a will, should be given effect as a deed, if good as a deed, and a writing not so executed as to be good as a deed should be given effect as a will, if good as a will.
Saunders v. Saunders, 115 Iowa 275, 88 N.W. 329; West v. Wright, 115 Ga. 277, 41 S.E. 602; Abney v. Moore, 106 Ala. 131, 18 So. 60; Hunt v. Hunt, 119 Ky. 39, 68 L.R.A. 180, 82 S.W. 998, 7 Ann. Cas. 788.
Is it clear that the makers of the writing before us did not intend to convey a present interest in the property? We think not. They made use of that form of instrument by means of which a present interest is usually conveyed; they used words of present conveyance; they described the land with particularity; the habendum clause is in ordinary form, the makers covenanted that they were seized in fee, and that they had good right to sell and convey; they executed and acknowledged the writing in accordance with the law governing the execution and acknowledgment of deeds, and not in accordance with the law prescribing the manner of executing and attesting wills; in the very clause which, appellants contend, renders this writing not a deed, the makers designate it as a deed.
Shackleton v. Sebree, 86 Ill. 616; Saunders v. Saunders, 115 Iowa 275, 88 N.W. 329; Lauck v. Logan, 45 W. Va. 251, 31 S.E. 986; West v. Wright, 115 Ga. 277, 41 S.E. 602; Abney v. Moore, 106 Ala. 131, 18 So. 60; Wilson v. Carrico, 140 Ind. 533, 49 Am. St. Rep. 213, 40 N.E. 50; Wyman v. Brown, 50 Mo. 139; Kelley v. Shimer, 152 Ind. 290, 53 N.E. 233; Hunt v. Hunt, 119 Ky. 39, 68 L.R.A. 180, 82 S.W. 998, 7 Ann. Cas. 788; Love v. Blauw, 61 Kan. 496, 48 L.R.A. 257, 78 Am. St. Rep. 334, 59 P. 1059.
A liberal construction should be placed upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties.
Broom's Maxims, 540.
We wish to call the court's attention to the case of Shaull v. Shaull, 182 Iowa 770, 166 N.W. 301, wherein the court held that a deed delivered and recorded in obedience to instructions by one to whom it was delivered in escrow, conveying land to one and his heirs and assigns, passed the title, although it provides that it is to take effect immediately upon the death of the grantors.
We wish at this point to very frankly call the court's attention to a complete and thorough discussion of this matter in 11 A.L.R., pages 23 to 106. After a careful reading of this discussion in the cases cited, we feel that the conclusion will be reached, that the modern trend of decisions is to interpret the instrument so as to give it vitality and effect.
M.S. McNeil, of Hazlehurst, and J. Morgan Stevens and J.M. Stevens, Jr., both of Jackson, for appellee.
The decisions of this court are without dissent on the proposition that where the effect of an instrument purporting to be a deed is postponed to a future date, that then the instrument conveys no interest and is void. The only point on which the decisions of our state and the decisions of other states disagree is in interpreting the language of particular instruments, some courts holding that similar language to the clause involved here has the effect of limiting the conveyance to a remainder interest and of reserving the life estate in the grantor. Our decisions, however, are quite clear that such language does not have the effect of conveying the property described or of reserving a life estate, but that the same is testamentary in character and void as a deed.
4 Thompson on Real Property, sec. 3868; Habergham v. Vincent, 2 Ves. Jr. 204, 230; Wall v. Wall, 30 Miss. 91; Cunningham v. Davis, 62 Miss. 366; Cox v. Reed, 113 Miss. 488, 74 So. 330; Simpson v. Magee, 112 Miss. 344, 73 So. 55; Thomas v. Byrd, 112 Miss. 692, 73 So. 725; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Williams v. Green, 128 Miss. 453, 91 So. 39; Knight v. Knight, 133 Miss. 74, 97 So. 481; Martin v. Graham, 114 Miss. 653, 75 So. 447; Sartor v. Sartor, 39 Miss. 760; 11 A.L.R. 23; 76 A.L.R. 636; Hart v. Gardner, 74 Miss. 153; Robinson v. Payne, 58 Miss. 692; Pickett v. Buckner, 45 Miss. 226; Klein v. McNamara, 54 Miss. 90.
Argued orally by J.M. Stevens, Jr., for appellee.
This is an appeal from a decree canceling a written instrument executed by the appellee to the appellant reading as follows:
"This indenture made and entered into this the 12th day of March, A.D. 1931, by and between W.H. McManus, of the first part, and Della McManus Tapley, party of the second part, Witnesseth, That the said party of the first part, for and in consideration of love and affection, and the sum of Ten ($10.00) Dollars, cash in hand paid by the party of the second part (the receipt whereof is hereby acknowledged) hereby grants, bargains, sells, conveys and warrants to said party of the second part, a certain tract of land situated in the County of Copiah and State of Mississippi, and more particularly described as follows, to-wit (description omitted). Said conveyance to take effect and be in force from and after the date of the death of the party of the first part.
"To have and to hold the above described premises, together with all and singular the improvements and appurtenances thereunto belonging or in any way appertaining, to the party of the second part, her heirs and assigns forever.
"Witness my signature this the 12th day of March, 1931."
This instrument was acknowledged and recorded.
The bill alleges, in substance, that the instrument conveys no present interest in the land, and cannot take effect as a deed because it expressly provided that the instrument, itself, shall "take effect and be in force from and after the date of the death" of the maker; that the appellant is asserting to the contrary, and is attempting to interfere with the appellee's use and occupation of the land. The prayer of the bill is for the cancellation of the instrument.
The case was heard on bill and answer denying that the instrument does not convey a present interest in the land, and asserting that the appellant was not attempting to interfere with the appellee's use and occupation of the land, and a decree was rendered in accordance with the prayer of the bill.
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. Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Cunningham v. Davis, 62 Miss. 366; Simpson v. McGee, 112 Miss. 344, 73 So. 55, 11 A.L.R. 4; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A.L.R. 5; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Knight v. Knight, 133 Miss. 74, 97 So. 481. This holding is in accord with numerous authorities elsewhere, as will appear from the citations in a note to Shaull v. Shaull, 11 A.L.R. at page 92. Cf. Rogers v. Rogers (Miss.), 43 So. 434, and Id. (Miss.), 43 So. 946, and Graham v. Triplett, 148 Miss. 299, 114 So. 621.
The appellant, however, says that the habendum clause in the instrument takes it out of the operation of that rule, and demonstrates that it was intended to convey a present interest. This clause contains no language conflicting with, or in any way modifying, the express provisions of the instrument that it shall "take effect and be in force after the date of the death" of the maker. "The office of the habendum is to limit and define the estate which the grantee is to have in the property granted," 18 C.J. 187, and not to provide when the instrument itself shall take effect.
The appellant further says that the cases hereinbefore cited should be overruled for the reason that they are in conflict with section 2110, Code 1930, which provides that "any interest in or claim to land may be conveyed to vest immediately or in the future;" but, as pointed out in Martin v. Graham, 114 Miss. 563, 75 So. 447, and Kelly v. Covington, supra, while land, under the statute, may be conveyed to vest immediately, or in the future, the instrument conveying it must take effect in praesenti, the maker parting with all right to thereafter dispose of the land otherwise.
Affirmed.