Johnston v. McDonnell

Ogden, J. 'Appellant brought this suit as the administrator of the estate of his deceased wife, against appellees, to recover [601] a certain lot of land in the city of Galveston, claimed to have been conveyed by deed of .gift to appellant’s intestate, by her parents, the appellees. Upon the trial below, the defendants filed a general demurrer to the plaintiffs petition, which was sustained by the court, and plaintiff declining to amend, judgment was rendered for the defendants. And the only question now presented for decision is in regard to the correctness of the ruling of the court on the demurrer. It appears from the bill of exceptions taken upon the trial, that the court decided that the deed set out in plaintiff’s petition, as the foundation for the action, was a conditional deed, and as the petition failed to allege a compliance with those conditions which were precedent to the vesting any title, it failed to show a good cause of action, and was obnoxious to a general demurrer. The deed set out in plaintiff’s petition conveys to their daughter, Eliza Johnston, the land described, conditioned that the same be used for the purpose of a homestead and not otherwise. This condition is again repeated in the body of the instrument, and finally the deed closes as follows: “ It being expressly understood that the property hereby con- “ veyed is intended as an advancement to our said daughter, “ and to be used by her and her said husband for the purposes “ of a homestead, and the same is not an estate in the property, l< to be transferred to another, during the life of our said “ daughter.” In the construction of all instruments the intention of the parties must be carried out, when it can be done without doing violence to the plain import of the language used. And in arriving at the intent of the parties, the whole instrument must be consulted, and if, after a comparison of each clause with every qther, one unambiguous, consistent, and legal conclusion is arrived at, that may be regarded as the intent and purpose of the parties, which must govern, and control each clause when regarded separately. Applying the rules above referred to, it is evident from the whole instrument that the appellees mainlv intended to pro [602] vide a home for their married daughter, by the donation of the land upon which the same should be established in the event of the acceptance and use of the same by herself and husband, to be an advancement to her, out of the parental estate. It is impossible, from the whole context of the instrument executed by them, to draw the conclusion that they intended an unconditional and absolute gift or donation, with full power of alienation at pleasure. Such an inference is expressly and emphatically denied in three separate and distinct clauses of that instrument, incorporated in each material part thereof, as though they feared a different construction might be given. They conveyed to her the land for the purposes of a homestead, to be used as such, and for nothing else; they covenanted that she should hold the same for that purpose; and finally they declare, in the closing paragraph, that it is not intended to convey an estate in the property, to be transferred during the life of them daughter. There can be no misunderstanding of the intent of the parties, that the estate should be a conditional one, and the condition attached to the grant was, that the land conveyed should be used as a homestead by the grantee during her life. Nor does the allegation that it is intended as an advance to the daughter in any manner change the character of that instrument, since an advance may be conditional as well as any other gift or donation. If the deed is a conditional one, then, so far as the questions raised in this suit are concerned, it is wholly immaterial whether it is a conditional fee, or a conditional life estate, or whether the condition is precedent or subsequent, since, if precedent, then no estate or interest could vest, until the performance of the condition, and if subsequent, then the death of the grantee renders the performance of the condition impossible. The condition in the deed is, that the daughter shall use the property as a homestead, and if she failed to comply with that condition during her life, then the estate, if it ever vested in her, would become forfeited, and would revest in the original grantor. The estate was granted upon a condition to [603] be performed during the lifetime of the grantee, and whether that condition was precedent or subsequent, the petition which sought the recovery of the land should have specifically alleged the performance of that condition; and failing to do so, it showed no cause of action, and the court did not err in sustaining a demurrer to the same. The judgment of the District Court is affirmed. Affirmed.