Wikle v. McGraw

McCLELLAN, J. A contract to convey land, without any specification of any particular title or interest intended to be passed, must be held to refer to an unincumbered and indefeasible legal estate in severalty.—Goodlett v. Hansell, 66 Ala. 151. If, however, the entire fee is not in the party who thus undertakes to transfer it, and has not been since the execution of the contract, equity will not decree specific performance, unless, indeed, the acquisition of the absolute estate by the defendant is practicable, and was in contemplation of the parties when the contract was entered into.—Fitzpatrick v. Featherstone, 3 Ala. 4; Goodlett v. Hansell, 66 Ala. 151; Moses v. McClain, 82 Ala. 370, 374; 3 Pom. Eq. § 1405. It is, therefore, a material inquiry in all cases, where the specific performance of a contract to convey is sought, whether the party contracting to convey has the estate in, or title to, the land which he covenanted to pass into the complainant. In the present case, the contract, under the principles we have advei’ted to, bound the defendants to the conveyance of a fee-simple absolute estate in the land described. One of the defenses relied on and sustained in the court below was, that S. F. McGraw did not own such estate, but that, on the contrary, she held in the land only an undivided interest in common with her children. In support of this contention, reliance is had upon the deed of Charles J. Cooper, from whom whatever interest the defendant has in the land is derived. This deed, omitting its merely formal parts and its description of the subject-matter, is in the following language: “ I, C. J. Cooper, for and in consideration of my affections, and the further consideration' of the support and well-being of my daughter, S. F. McGraw, and her children, I do hereby give, grant and convey unto said S. F. McGraw (wife of D. L). McGraw), and to her bodily heirs, the following described real estate, . . . to have and to hold to her, the said S. F. McGraw, and her bodily heirs, for their use and benefit forever; and I will forever warrant and defend the title to the same to the said S. F. McGraw and her bodily heirs, against all persons whatsoever.” S. F. McGraw had two children at the date of the execution of this deed, and two have since been born to her; all of whom are still living. And the question is, whether the intention evidenced by the instrument was to vest title in the mother and her children (whether those in esse only, or including those after-born also, is not material), or to create a life-estate in the mother, with remainder over to the heirs of her body. If the former construction is to' obtain, S. F. McCraw took only an undivided interest, in common with either two or all of her children, in the land conveyed, and, of course, can not [634] convey the fee in the whole, as the contract on its face requires, and as the complainant now demands. If the latter is the ■true interpretation of the instrument, an estate-tail would be created, which, by the terms of our statute, is avoided as to the entailment, and converted into an absolute fee-simple in S. E. McGraw, a conveyance of which by her would fill the terms of her contract, as here sought to be enforced. — Code, § 1825. We are unable to distinguish this deed, in the particular under consideration, from some of those construed by this court in former adjudications, in which the terms “heirs of the body,” and “bodily heirs,” in the granting and habendum clauses, have been held to be synonymous with “children.” The considerations for the present deed are declared to be the grantor’s “affections” for, and “the support and well-being of” his daughter, Mrs. McGraw, and her children. It is not reasonable to suppose that the grantor, moved solely by his affections for his daughter and her children, and evidencing in his declaration of the motives which actuated him his purpose to provide for her and their support and well-being, and no other purpose whatever, should nevertheless, in the body of the deed, not only have failed to make provision for the present support and well-being of his grandchildren, but, instead, undertook to make provision for distant generations of their descendants — a purpose in no wise foreshadowed in the instrument. It is, to our minds, much more reasonable to conclude, that the purpose throughout was to make provision for Mrs. McGraw and her chilldren, and that to this end, and for the purpose of designating “children,” the term “bodily heirs” was employed by the draughtsman of the paper, who does not appear to have known the legal significance of the words used. There is no other way to give effect to the grantor’s declared purpose; and we accordingly hold the conveyance was to Mrs. McGraw and her children as tenants in common.—Fellows v. Tann, 9 Ala. 999; Powell v. Glenn, 21 Ala. 459; Williams v. McConico, 36 Ala. 22; Robertson v. Johnson, Ib. 197; May v. Ritchie, 65 Ala. 602. The bill was properly dismissed, therefore, because Mrs. Mc-Graw did not have the title she contracted, as insisted by complainant, to convey, and which the bill seeks to compel her to convey. This conclusion, in which the final action of the City Court finds justification, renders it unnecessary to consider the remaining assignments of error. If error was committed, in any particular, it was without injury to the appellant, since in no event would h e have been entitled to the relief prayed. The decree of the City Court is affirmed.