McLain v. Garrison

FISHER, Chief Justice. As the heirs of John M. McLain, deceased, who died intestate, the appellees brought this suit in trespass to try title against the appellants John B. and H.N. McLain and Mrs. — 433 — Katherine Flora McLain and Mattie Lou McLain, to recover certain lands described in deeds executed by John M. McLain on the 11th day of January, 1898, to the appellants. On the 11th day of January, 1898, John M. McLain executed to John B. McLain and H. FT. McLain each deeds conveying the lands therein described, which instruments were by the trial court construed to be testamentary in character, and, in view of this fact, the jury were instructed to return a verdict against John B. and H. FT. McLain in favor of appellees. Also on the 11th day of January, 1898, John M. McLain executed to the appellants, Mrs. Katherine Flora McLain and Mattie Lou McLain a deed conveying to them the lands described, which instrument .the court held to be a deed, and accordingly instructed a verdict in favor of appellants Katherine and Mattie McLain. The question as to the construction of these instruments is the principal, if not the only one, presented in this appeal. The appellants contend that the two first instruments mentioned are not testamentary in character, but are deeds, and were so intended to operate as deeds by the grantor, John M. McLain. The appellees by cross assignment contend that the instrument executed by John M. McLain to Mrs. Katherine Flora McLain and Mattie Lou McLain, is also testamentary in character, and is not a deed, as held by the trial court. The two instruments first mentioned are in words as follows: The State of Texas, County of Hill. “Know all men by these presents that I, John M. McLain, of the County of Hill and the State aforesaid, for and in the consideration of the sum of one dollar and love and affection to me paid and secured to be paid by H. FT. McLain, my son, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said H. FT. McLain an undivided half interest in four hundred and three acres of land, more or less, of the county of-State of-, all that certain tract of land being a part of the Joseph McGee survey in Hill County, Texas, meted and bounded as follows: (Here follows description by metes and bounds) containing 403 acres of land more or less. This deed is to take effect at my death and not before. “To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said H. FT. McLain, and his heirs and assigns forever, and I do hereby bind my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said H. FT. McLain, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof. “Witness my hand at home in Hill County, this the 11th day of January, A. D. 1898. “John M. McLain.” “The State of Texas, County of Hill. “Know all men by these presents that I, John M. McLain, of the county of Hill and State aforesaid, for and in consideration of the sum-of one dollar and love and affection to me paid and secured to be — 434 — paid by John B. McLain, my son, as follows: Have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said John B. McLain an undivided one-half interest in 403 acres of land, more or less, of the county of Hill, State of Texas, all that certain tract of land being a part of the Jos. McGee survey in Hill County, Texas, meted and bounded as follows: (Here follows description of land by metes and bounds) containing 403 acres of land, more or less. This deed is to take effect at my death and not before. “To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in any wise belonging unto said John B. McLain and his heirs and assigns forever. “And I do hereby bind my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said John B. McLain and his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof. “Witness my hand at home in Hill County, this the 11th day of January, A. D. 1898. "John M. McLain.” The deed from John M. McLain to Katherine Flora McLain and Mattie Lou McLain is as follows: “The State of Texas,. County of Hill. “Know all men by these presents that I, John M. McLain, of the county of Hill and State aforesaid, for and in consideration of the sum of one dollar and love and affection to me paid and secured to be paid by Katherine Flora McLain and my daughter, Mattie Lou McLain, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Catherine Flora McLain and Mattie Lou McLain of the county of Hill and State of Texas, all that certain tract or parcel of land being part of the Jos. McGee and Wesley Young surveys, meted and bounded as follows. (Here follows description of land by metes and bounds) containing 102 acres of land, 54 acres of which is in the McGee survey and about 48 acres in the Young survey. “Also one tract commencing at stake marked A on the plat of tract number 1; thence north 60 east 1786 varas to a stake for 'corner; thence south 30 - 765 varas to a stake for corner of the McGee survey;thence south 60 west, 1344 varas to a stake for corner of the McGee survey, marked B; thence north 60 west 884 varas to the stake marked A, the place of beginning, containing 212 acres of land more or less. “To have and to hold after my death and not before to said Catherine Flora McLain during her lifetime or widowhood, and in either event to then revert to my daughter, Mattie Lou McLain; if the said Mattie Lou McLain should die without leaving any bodily heirs, then the property conveyed in this deed is to revert to my two sons, John B. McLain and H. U. McLain, one-half to each and their children forever, the above described premises together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Catherine Flora McLain and Mattie Lou McLain as stated above, and I do hereby, bind my heirs, executors and administrators to warrant and forever — 435 — defend all and singular the said premises unto the said Catherine Flora McLain and Mattie Lou McLain as stated above, against every person whomsoever lawfully claiming or to claim the same or any part thereof. “Witness my hand at home in Hill County, this the 11th day of January, A. D. 1898. “John M. McLain.” Each of these instruments was witnessed at the request of the grantor by only one witness by the name of W. H. Collier; each was acknowledged in the form required by the statute before B. E. Wells, notary public, on the 11th day" of January, 1898, and each was filed for registration in the county clerk’s office on the 14th day of January, 1898, and duly recorded on the 17th day of January, 1898, in the deed records of Hill County. Of course, it is conceded that in determining the effect tp be given to these instruments, the intention of the maker, as gathered from the face of the documents, is the question of primary importance. The evidence in the record is to the effect that these instruments were not written by the grantor John M. McLain, but were prepared by Wells. They are only attested by one witness; therefore, "in view of article 5335 and 5336 of the Revised Statutes, they could not be established or probated as wills. Therefore, if they are held to be testamentary in character they could be given no effect, and their execution was a useless and idle ceremony. It is reasonable to suppose that the maker of these instruments intended to accomplish some purpose by their execution, and that they should be given some effect as determining and fixing the rights of the parties thereto. He and the party that framed the instruments must have known that they could not be effective as wills, for the requirements of the law which were necessary to be observed in order to create documents of a testamentary nature, were not complied with; and such provision of the law, it is reasonable to suppose they were familiar with. How, assuming that the maker intended to accomplish some purpose by the execution of these instruments, and further observing the rule that where the language of the documents admit of it, they should be most strongly construed against the maker in cases of doubt or uncertainty, the question is suggested, what construction, from the language used, would be reasonable and consistent as indicating the intention of John M. McLain in the execution of these instruments ? Eliminating the words, “This deed is to take effect at my death and not before,” the instruments are practically in the form prescribed by the statute for what is sufficient to constitute a deed. The language employed contains all the elements of a deed; it grants and conveys to the grantee the interest described, and concludes with the usual habendum and warranty clauses. The only words that indicate that it was not the intention to pass a present interest are those quoted, and from this language it appears that the maker called the instrument a deed, which shows evident intention that it should have effect as a deed or as a conveyance of the land; and we are of the opinion that it was the intention by the language used to merely reserve an interest in the property during the lifetime of the grantor, and that the deeds should only become effective to disturb this right at his death. — 436 — Article 556 of the Revised Statutes provides that an estate or freehold or inheritance may be made to commence in futuro by deed or. conveyance, in like manner as by will. This was construed and applied in Chrisman v. Wyatt, 7 Texas Civ. App., 40; and the court in the case of Jenkins v. Adcock, 5 Texas Civ. App., 470, had before it an instrument for construction somewhat similar in its terms to those we are called upon to construe. The instrument, in addition to the language usually contained in deeds, after naming the grantee, stated, “have granted, sold and-conveyed, to take effect at my death, and by these presents do grant, bargain and sell to the said Nancy B. Adcock,” then goes on and describes the land, and further states, “And at my death my interest in said land and premises is by these premises conveyed to my sister, Nancy B. Adcock, to have and to hold, etc.” The court in that case construed the instrument to be a deed. The well considered ease of Wilson v. Carrico, 140 Ind., 533, is strongly in point and aptly illustrates our views upon the question under consideration. Indiana has a statute very much similar to ours, which authorizes an estate to be created which may commence in futuro. The strong similarity between the deed there under consideration and those in controversy here, together with the pertinency of the opinion, induces us to set it out in full: Action in ejectment by appellant to recover certain real estate and to quiet title thereto. The error assigned is that the court erred in sustaining a demurrer to appellant’s complaint. A condensed statement of the facts as they appear in the complaint is as follows: “That on November 18, 1867, one Bazzle Carrico was the owner in-fee simple of certain described lands situated in Sullivan County, Indiana. On that day he and his wife, Frances, duly executed to one Elza Carrico a deed for the real estate sought to be recovered in this action, said deed being ás follows, to wit: ‘This indenture witnesseth that Bazzle Carrico and Frances Carrico, his wife, of Sullivan County in the State of Indiana, convey and warrant to Elza Carrico, of Sullivan County, in the State of Indiana, for the sum of one hundred and fifty dollars, the following real estate, in Sullivan County, in the State of Indiana, to wit: the northeast quarter of the northeast quarter of section 31, township seven, north of range eight west, with the exception of -ten acres off the east side of the forty acres, containing thirty acres, more or less. The above obligation to be of none effect until after the death of the said Bazzle Carrico and Frances Carrico, then to be in full force. In witness whereof, the said Bazzle Carrico and Frances Carrico have hereunto set their hands and seals, this 18th day of November, 1867. Bazzle Carrico (seal) her Frances X Carrico (seal) mark “ ‘State of Indiana,) Sullivan County. ( ss: “‘Before me,-Benson'Usrey, a justice of the peace in and for said — 437 — county, this 18th day oí November, 1867, came Bazzle Carrico and Frances Carrico, and acknowledged the execution of the annexed deed. “‘Witness my hand and official seal. “‘Benson Usrey, J. P. (Seal.)’” “This deed was recorded in a few days after its execution in the recorder’s office of Sullivan County, Indiana. On March 9, 1870,. Elzia Carrico and wife conveyed the land in controversy by a warranty deed, to appellant, for and in consideration of the sum of two hundred and fifty dollars ($250) and they provided in this deed that the land was conveyed subject of the life estate of Bazzle and Frances Carrico. This deed was also 'acknowledged and recorded. Bazzle Carrico died on September 6, 1872, and his wife, Frances, died on January 11, 1892. Other facts, not necessary to be considered in the determination of this case, are omitted. We are informed by the briefs of the parties that the trial court held the deed void upon the ground that in its character it was testamentary. The learned counsel for the appellant denies that the deed is in any respect testamentary, and insists that by it there was a conveyance of the premises therein described to the grantee and that the subsequent and questionable clause therein contained was intended by the grantor as a reservation or postponement of the full use and enjoyment of the realty by the grantee until after the de.ath of the grantors; that after the demise of each of these the deed in question was to be in full force, or, in other words, that the complete enjoyment of the use and occupation of said land by the provision of the clause in controversy was postponed until after the death of Carrico and wife, and was then fully to vest in the grantee. Upon the other hand the learned counsel for the appellee say that they do not controvert but what the instrument in question was intended by the parties as a deed, and not as a will, and concede that it has all the formalities of the former. But they contend that it was the evident purpose and intent of the grantor to reserve all the estate which he intended to convey, and that the deed was not to take effect until after the death of himself and wife, and that hence it must be held to be testamentary in its character, and therefore void, for the reason that it is not executed in accordance with requirements of the statute on wills. The instrument in question calls for a judicial construction, and in this the court must seek for and be guided by the intention of the grantor. And this intention must be deduced and arrived at by consideration of all of its parts, and in this construction we must observe and adhere to the rule that this deed in both the granting part and clause under consideration must be construed most strongly against the grantor and in favor of the grantee. “It was a principle recognized by the feudal law that there should always be a known owner of every freehold estate, and that the title thereto should never be in abeyance. Hence at common law a freehold to commence in future could not be conveyed for the reason that the same would be in abeyance from the execution of the conveyance until the future estate of the grantee should vest. “Under the statute of this State a freehold estate may be created to commence in futuro; section 2959 Revised Statutes, 1881, section — 438 — 3379, Eevised Statutes, 1894; and hence the common law principle above stated has been entirely abrogated. This deed is in the statutory form, and in the granting part accords with the provisions of section 2927, Revised Statutes, 1881, section 3346, Revised Statutes, 1894, and contains what are, by law, made operative words of conveyance, and in effect transfers all the estate or interest of the grantor in the lands in suit to the grantee. The terms “convey’ and ‘warrant,’ when given their legal purport or acceptation, fully indicate an intention to convey a present estate to the grantee, and defend the title thereto; and in no way is it apparent or to be inferred from these words that the grantors intended to devise the real estate in question. The instrument was acknowledged and recorded in like manner as are other deeds; therefore we fail to recognize anything which signifies that it was intended to serve the purpose of a will. The question then arises what was the purpose intended to be served by the inapt expression, namely: ‘To be of nope effect until after the death of said Bazzle Carrico and Frances Carrico, then to be in full force.’ “It is evident that the drafting of the indenture in question was not skillfully performed, and that thereby it very closely approximates to what may be termed the ‘danger line’ by which a judicial construction might result in adjudging the deed to be a nullity." “While it may be said in regard to the point under consideration that the authorities ‘fight on both sides’ of the question; however, we find that in the later decisions the courts are inclined to uphold a deed of this character, if upon a reasonable interpretation of all its parts it can be said that the grantor did not intend to create, or in other words execute, that which must be construed and held to be void. “In construing written instruments courts frequently do—and properly, too—give to an expression a meaning different from that which it ordinarily bears in order to import sense into it and make it speak that which, upon inspection of the whole, the parties really intended that it should. “We find that there is no ambiguity in the granting clause of the deed in the case at bar, and consequently, we are left free to effectuate the intention of the grantor expressed in the subsequent clause or condition. The grantors had, as we have seen by operative words, clear and significant, conveyed an interest or fee in praesenti to the grantee; having done this they could not, in legal parlance ‘blow hot and cold;’ or, in other words, reserve or take back that which they had granted. “In the case of Owen v. Williams, 114 Ind., 179, the instrument in contest was in the form of a deed and in the granting clause, by its terms, ‘did convey and warrant to Williams after my decease and not before.’ This court held that the phrase, ‘after my decease and not before,’ did not make the deed testamentary, but was meant and operated to show that the grantee’s use and enjoyment of the realty would not begin under the deed until after the death of the grantor. “In the case of Cates v. Cates, 135 Ind., 272, the deed therein in controversy was also in the statutory form, but contained the following reservation: ‘The grantor, Prior Cates, hereby expressly excepts and reserves from this grant all the estate in said lands, and the use, occupation, rents and proceeds thereof unto himself during his natural life.’ — 439 — This court in that case, upon a full review and consideration of many authorities upon the question involved, held that such an instrument must be construed as conveying a present interest in the real estate, the full enjoyment of which was postponed until after the grantor’s death. “In the case of White, Administrator, v. Hopkins, 80 Ga., 154, cited in Cates v. Cates, supra, the deed contained this clause or condition: ‘The title to the above described tract of land to still remain in the said Lemuel Hopkins (grantor) for and during his lifetime, and at his death to immediately vest in the said Lewis Hopkins (grantee).’ It was held by the Supreme Court of Georgia in that case that an absolute title was, by this deed, conveyed to the grantee; that it passed a present interest in the land, and took effect immediately, and after its execution it was irrevocable by the grantor. “In Graves v. Atwood, 52 Conn., 512, the deed contained the following: ‘The condition of this deed is such that I hereby reserve all of my right, title and interest in the aforesaid described pieces of land, with all the buildings thereon during my natural life.’ It was held by the court that this condition, read in the light of the grant, was to be interpretated as a reservation of the same measure of use thereafter as tenants for life, as the grantor had before enjoyed it as owner. “In Webster v. Webster, 33 N. H., 18, the condition was: ‘Reserving all the rights, title and interest in and unto the above named land, etc., for and during my natural life.’ “In Bunch v. Nicks, 50 Ark., 367, the deed contained the following clause: ‘And the deed shall go into full force and effect at my death.’ The court held this deed to be a valid one, conveying a present title to the grantee with the right of possession and use postponed until the grantor’s death. “In Wyman v. Brown, 50 Me., 139, the deed was as follows: ‘This deed not to take effect during my lifetime—to take effect and be in force from and after my death.’ This was held to be valid. “In the case of Abbott v. Holway, 72 Me., 298, the instrument contained this clause: ‘This deed is not to take effect and operate as a conveyance until my decease.’ This was held to be a good and valid conveyance. “In Shackelton v. Sebree, 86 Ill., 616, the deed contained covenants of warranty, and also this clause: ‘This deed not to take effect until after my death—not to be recorded until after my decease.’" This instrument was held operative as a deed, and not intended as a testamentary disposition of property. These authorities, most of them, at least, were cited with approval by this court in Cates v. Cates, supra. “It is a settled rule that in the interpretation of an instrument, where the terms employed are ambiguous, or susceptible of more than one meaning, the court will consider the subsequent acts of the parties to ascertain how they understood it, and as indicating what construction they placed upon it. (H. G. Olds Wagon Works v. Coombs, 124 Ind., 62, and cases there cited; Lyles v. Lescher, 108 Ind., 382.) “However, while it is proper to resort to this rule to show a practical construction by the parties, still, after all, the intention must be determined from the words of the instrument. — 440 — “The manner in which this deed was treated by the parties in this case, as it appears, is briefly as follows: It was executed in 1867 for a valuable consideration and duly recorded. In 1870, during the lifetime of the grantor, for a valuable consideration, the grantee sold and conveyed the land to the appellant subject to the life estate, of the former. This deed was also recorded. Bazzle Carrico died in 1872, two years and over after the conveyance to the appellant. Frances, his wife, died in 1892, nearly twelve years after this second conveyance, and not until after her death, so far as it is disclosed, was this deed called in question. These subsequent acts of the grantor, in suffering the deed to be placed upon record, and in permitting the land to be sold and conveyed by their grantee to the appellant, subject to their life estate, are incompatible with the contention of appellee and hostile to the theory now advanced and advocated by him. “In Broom’s Maxims, star page 540, in .translating a fundamental maxim of the law it is said: ‘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.’ Applying the reason and the principle as laid down by the authorities cited, and guided by the rule of construction that the clause in controversy must be construed most favorable to the grantee, we can not hold that the grantors intended that this obligation was to be null and void, but we are constrained to decide that it conveyed a present interest in the real estate to the grantee, the full enjoyment of which was, by the subsequent clause, intended to be postponed until after the death of both of the" grantors. By so holding we carry into effect the intention of the parties, and we fail to recognize wherein this construction works an injury or injustice to anyone. This interpretation, we think, will simply carry out the intention of Carrico and his wife and give protection to the rights of a purchaser acquired on the faith of their deed and their acts. The conclusion we have reached renders it unnecessary to consider the repugnancy, if any, existing between the grant and the exception. Howevér, when such does exist it is well settled that the latter is void. See cases cited in Cates v. Cates, supra. “It therefore follows that the court erred in sustaining the demurrer to the complaint.” ‘ We have reached the conclusion that the trial court erred in the construction placed upon the two deeds first mentioned in the opinion, but correctly construed the instrument executed to Catherine Flora McLain and Mattie Lou McLain. We are of the opinion that all three instruments are not of a. testamentary nature, but that they were intended as deeds. In view of the fact that there is some question in the case as to the delivery of these instruments, we are not prepared to reverse and render. Therefore, the judgment will be reversed and the cause remanded. Reversed and remanded.