Perdue v. Montgomery Building & Loan Ass'n

STONE, C. J. It is not controverted by appellants, that the language of the habendum clause, in the deed we are called upon to interpret, would, if found in a deed of bargain and sale, vest in Mrs. Carter, the grantee, an equitable separate estate, as distinguished from an estate made separate by our statute. “ To have and to hold . . unto the said Martha L. Carter, for her sole' use and benefit,” are clearly words of exclusion, under all our rulings. The decisions of this court, 'bearing on the question, are to some extent collected and classified in Miller v. Voss, 62 Ala. 122; 2 Brick. Dig. 81. The precise form of appellant’s argument is, that the principle stated can not apply to this case; first,- because the conveyance is only a quit-claim deed, and does not purport to convey title. This is a misapprehension of the effect of the quit-claim deed. The present conveyance contains the words “ remise, release, and quit-claim.” . These words import much more than a mere disclaimer of interest. They imply that there is an interest, or claim, which is surrendered. They are sufficient to pass the estate in a primary conveyance. See the words Remise and Quit-claim, in Bouvier’s Law Dictionary. Such deed avails to transfer whatever title the grantor, or maker of the deed, has. It may even convert a tortious possession into a lawful seizin, and, in such case, would be the holder’s only muniment of title.—2 Bla. Com. *518-9. A second position taken for appellant is, that the words of exclusion found in the quit-claim deed were inserted, not for the purpose of excluding the marital rights of Mrs. Carter’s husband, but for the purpose of barring effectually all claim Mr. Figh, the maker of the deed, or his heirs, might assert. This would render them wholly nugatory ; for the words “ remise, release, and quit-claim,” accomplished that. The entire habendum clause bearing on this question .is in the following language: “ To have and to hold the said released premises unto the said Martha L. Carter, for her sole use and benefit, her heirs and assigns, to her own proper use, benefit and behoof forever, so that neither the said John P. Figh and Jane Figh, their heirs or assigns, or any other person, . . . shall, will, can or may, by any ways or means whatever, hereafter have, claim, challenge or demand any right, title, interest or estate, in and to the premises above described and hereby released.” The argument is, that the context shows the intention was to exclude all claim of Figh and his heirs, and not the marital rights of Mrs. Carter’s husband. A more rational interpretation is, that the .words, “ unto the said Martha L. Carter, for her sole use and benefit, heirs and assigns,” were intended to express the quantum of interest she would take, and the right in which she would take it, and that the residue of the clause was in [481] sertecl — unnecessarily inserted, perhaps — to bar effectually any claim Figh, his heirs or assigns, might assert. Manifestly, the deed is needlessly verbose, and the work of an unskilled draughtsman. This quit-claim deed was introduced in evidence by the defendants, and the bill of exceptions affirms that “it was admitted [it] constituted the title under which Mrs. Martha L. Carter claimed and owned the property at the time the two mortgages were executed.” It created in her an equitable separate estate, which she had power to charge and did charge by the execution of the mortgages. The judgment of the Circuit Court is affirmed. Olopton, J-., not sitting.