Dunlap v. Mobley

STONE, J. The deed of J. R. Carpenter to three of his children, bearing date December 28th, 1875, wras evidently drawn by one unskilled in the law. Its provisions are, in some respects, so inaptly expressed, that we find it difficult to arrive at the grantor’s intention with satisfactory conviction. One clause of the deed, considered by itself, indicates that the title was not to pass to the grantees, until they paid to Miss Strother the debt secured to her by mortgage on the lands. That clause is as follows: “Now, this conveyance is made to the parties of the second part, and to their heirs and assigns, absolute and in fee simple, with and on the following conditions, and with the knowledge and understanding of them as follows.” Then comes a statement that the lands conveyed were under a mortgage previously executed to a Miss Strother, to secure a debt to her of thirteen hundred and fourteen dollars, and the deed proceeds: “Now, on payment of said note and full satisfaction of this indebtedness made by either the party of the second part, then this conveyance shall be absolute in fee simple, and in full force and effect.” Giving to the words “ conditions,” and u fee simple ” their strict legal signification, they tend to show that title was to remain in the grantor, until the debt to Miss Strother was paid. The next clause, however, tends to show that was not the idea the draughtsman had in his mind. Its language is, that “until said note is fully satisfied, the land conveyed to Miss Cora Strother for the purpose of securing the payment of the same, is and shall remain subject to the conditions and purposes .mentioned in the conveyance.” The clause last copied is stated antithetically to that first copied. The relation of the clauses is well maintained, if we construe their meaning to be, that if the grantees paid the debt to Miss [105] Strother, then the condition — state—of the title would, and was intended to be, a fee simple in them. But until the debt was paid, the lands remained subject to her mortgage claim. The relation is not maintained, if we give to tho word “ condition” its technical, legal sense. We think the draughtsman of the deed employed the word “conditions” in its generic sense, to denote the predicament, or status of the title; its then condition. He did not convey an absolute fee simple; he had none to convey. He owned but an ecpiity of redemption, and he could c'onvey only such title as he owned. The deed, however, containing covenants of warranty, would vest in the grantees a title in fee simple, whenever the incumbrance should be removed by a payment of the mortgage debt.—Chapmam, v. Abrahams, 61 Ala. 108. A later clause iii the deed renders this construction satisfactory. It provides that “ upon the payment of said note [to Miss Strother] by the party of the first part, or by the parties of the second part, all the right, title and interest in and to the above described land shall vest in the parties of the second part,” etc. This demonstrates that payment to Miss Strother of her demand by the grantees was not made a condition precedent to the vesting of title in them. The deed only mentioned,the mortgage, because it was an in-cumbrance, which prevented the grantor’s deed from conveying a fee simple title. This construction harmonizes the entire deed with the granting clause, which is general in its expressions of present bargain and sale. Kirksey was not a competent witness for the administrator de bonis non, to prove a transaction with Carpenter, the decedent. The purpose and effect of his testimony were to increase the sum of the assets, in which he, as-a creditor of the insolvent estate, would be entitled to a dividend. True, he was not known as a, party on the record. Mobley, however, was only a trustee of a trust fund, of which Kirksey was one of the beneficiaries.—Code of 1876, § 3058; Tisdale v. Maxwell, 58 Ala. 40; McCrary v. Rash, 60 Ala. 374. The product of the property conveyed by .the deed should not- have been charged against the administrator in chief. If he paid part of, the mortgage debt to Miss Strother, he did it in his own wrong, and is not entitled to a credit therefor in his settlement. The most he can claim will be to come in as a creditor against the insolvency, if he has put himself in condition to do so. Reversed and remanded.