Glover v. Webb

McCLELLAN, J. Statutory ejectment, instituted by appellants against appellee. On trial by the court without jury, the material facts being agreed, defendant, had judgment. The plaintiffs (appellants) claim the lands described in the complaint through and from their father, W. A. Glover, who died in 1912. W. A. Glover (plaintiffs’ father) was the son of W. A. Glover, Sr. W. A. Glover, Sr., owned the land in question prior to November, '20, 1875. On that date W. A. Glover, 'Sr. (then unmarried), executed to his four children, in consideration of love and affection, an instrument in form a deed, acknowledged it as a deed, and some months later it was filed for record, and was recorded in Greene county, Ala., where the lands described therein were situated. The instrument bore these terms: “This deed is not intended and does not convey to my said children Williamson A. Glover, Alfred Y. Glover, Isora L. Glover and John D. Glover any right or title to above-described real estate or the proceeds thereof until after my death. In ease of the death of dll the above-named children the above-described real estate and ,the proceeds thereof to revert to my immediate heirs.” [1,2] In the absence of evidence to the contrary, the filing of the instrument for record was sufficient to invite the conclusion that the instrument if a deed, was perfected by delivery. 4 Mich. Ala. Dig. pp. 756, 757. Under the apt authority of Abney v. Moore, 106 Ala. 131, 18 South. 601; Phillips v. Phillips, 186 Ala. 545, 550, 65 South. 49, Ann. Cas. 1916D, 994; Josey v. Johnston, 197 Ala. 482, 73 South. 27; Jenkins v. Woodward Iron Go., 194 Ala. 371, 69 South. 646, and others therein cited, it must be held that this instrument was a deed, not a will; and that its effect was to reserve in the grantor the right to retain the possession and enjoyment of the lands granted during his life. [3] The defendant, Webb, who went into possession of this land, relies for his right and title to the land in question upon a deed from W. A. Glover, Jr., the father of the plaintiffs, appellants. At that -time, 1912, the father of the plaintiffs, was heavily indebted to Webb’s commercial concern domiciled at Memphis, -Tenn. The father of plaintiffs was the owner of lands in Mississippi as well as in Greene county, Afa., upon which he had given mortgages- to secure debts to the Webb Company and to another. To adjust, satisfy and discharge his indebtedness to the Webb Company, the father of the plaintiffs executed to the Webb Company (under which George T. Webb conducted his business) a deed to lands in Mississippi, and to lands in Greene county, Ala., the latter subject of conveyance being described as follows : “ * * * And all of the right, title and interest of the said W. A. Glover [i. e., grantor] in and to all lands heretofore owned by his father Williamson Glover, deceased [i. e., W. A. Glover, Sr.], at the time of his death, situated in Greene county, Alabama.” The plaintiffs insisted unsuccessfully below and again contend on appeal that the words “heretofore owned liy his father Williamson Glover, deceased, at the time of his death” should be read as only applying to *553 lands in which Williamson Glover held the fee at the time of his death, this insistence having the effect, if accepted, of interpolating after the word “owned” the words “in fee,” thereby excluding from W. A. Glover’s grant to the Webb Company the lands in which Williamson Glover reserved a life estate in the deed (quoted above) executed by hi n to his four children on November 20, 1875. As appears, the decision depends upon the meaning and significance to be accorded the word “owned” in the grant from W. A. Glover to the Webb Company. There are occasions, afforded or affected by statute as well as by contracts, when the word signifies absolute ownership in fee; and there are occasions when “owned” signifies the investment, with a lesser right or title than a fee in the subject-matter. Guild v. Prentis, 83 Vt. 212, 74 Atl. 1115, Ann. Cas. 1912A, 313, and annotations on pages 316-318; 3 Words and Phrases (2d Series), p. 845 et seq.; 29 Cyc. pp. 1549, 1550; Gravlee v. Williams, 112 Ala. 544, 20 South. 952. The scop^ of its definition or application depends upon the particular circumstances surrounding or related to its employment to express an intent. Here, the design was to identify land conveyed, not define an estate theretofore existing or to be transmitted. That the grantor intended to convey to the Webb Company all his right, title, and interest in the Greene county lands owned by hi's father, at the time he died, is plain, is expressly avowed. It is equally unmistakable that the grantor intended to convey to the Webb Company all his right, title, and interest in all the Greene county lands owned by his father at the time he died. The use of “all” in defining both of these elements of the grant (the estate and the property) characterizes the grantor’s intent with an effective comprehension that is inconsistent vyith th® view that the word owned was designed to refer only to the elder Glover’s ownership in fee. The circumstances under which the conveyance was made to the Webb Company and the possession taken consist with this interpretation. The context, in the light of the circumstances, would be unduly restricted if “owned” was read as not referable to, not inclusive of, lands in which the elder Glover held a life estate. To that extent he was the owner of lands in Greene county; and the grantor’s method of identifying the subject (in Greene county) of his grant to the Webb Company manifests no purpose to exclude such lands as the elder Glover owned as a life tenant. . The trial court correctly took and enforced this construction. Its judgment is affirmed. Affirmed. ANDERSON,- C. J., and SOMERVILLE and THOMAS, JJ., concur.