Stubbs v. Glass

Beck, J. (After stating the foregoing facts.) We are of the opinion that the court erred in directing a verdict for the defendant. The plaintiffs showed that their ancestor, Barbara E. Stubbs, had title to the land under a deed from Eachel Blalock. This deed, executed on January 24, 1866, and recorded on the same day, conveyed a life interest to Barbara E. Stubbs, with remainder to her children, the grantor reserving the use and possession of the land during her life. There is no dispute that this deed was sufficient to vest the grantee with a life-estate in the property conveyed. The defendant derived title from a deed executed on September 12, 1871, by Barbara E. Stubbs to Thompson Nash, conveying the same property, and an instrument in writing executed by Eachel Blalockj which recites that she, having previously made a deed of gift to the land in controversy, and having in said deed reserved the right to control and use said land during her natural life, “I, Eachel Blalock, do by these presents and in the presence of the witnesses relinquish all right and titles to said claim whatever to [58] said Thompson Nash, his heirs and assigns, forever in fee simple.” The defendant contends that this last -written instrument executed by Rachel Blalock, taken in connection with the deed from Barbara E. Stubbs to Thompson Nash, was a deed of conveyance; that these-conveyances were for a valuable consideration, while-the prior deed of Rachel Blalock to Barbara Stubbs was a voluntary deed; and therefore that the defendant’s title will prevail over the rights of the plaintiffs, who claim under a voluntary deed, as the defendant took without actual notice of the voluntary deed. This contention is not sound. Mrs. Stubbs’s deed to Nash could only convey such interest as she had '(her estate for life), and if the instrument recited above, which the defendant insists operates as a deed from Rachel Blalock, be treated as such, it contains on its face notice of the prior conveyance executed to Barbara Stubbs, and a party taking such an instrument took it charged with notice of the prior conveyance and subject thereto, conceding that it was voluntary in character. The defendant claims title under a series of conveyances from Thompson Nash and his successors in title; but none of these successors in title had a better title than Thompson Nash, and the defendant, relatively to these plaintiffs, occupied no better position than Thompson Nash and the intermediate grantors between him and the defendant; and when Mrs. Barbara Stubbs died in 1910, the plaintiffs had their right of action to recover the land in controversy. In her answer the defendant set up a prescriptive title. So far as relates to this claim, it is only necessary to say that the evidence did not authorize the court to direct a verdict for the defendant. Indeed, it is not insisted in the brief of counsel for defendant in error that the evidence showed a prescriptive title in their client. Their contention is solely that the ease turned upon competition between a deed executed upon a valuable consideration and a prior voluntary conveyance, of which the first taker under the conveyance for value did not have actual notice. But, as we have seen above, that contention is without support in the evidence. In the motion for a new trial there are numerous grounds complaining of the admission of evidence; but the assignments of error in these grounds raise no question for determination here, as they fail either to show what objection was urged at the time the evidence was introduced, or to set out the evidence introduced, literally [59] or in substance, so that this court could judge of its materiality. The judgment is reversed upon the ground that the judge erred in directing a verdict for the defendant. Judgment reversed. All the• Justices concur, except Fish, G. J., absent.