Hummelman v. Mounts

Elliott, J. This case turns upon the question whether the instrument copied below contains words sufficient to give it the character of a deed. The instrument is as follows: “This indenture witnesseth, that I, Jacob Smith, of Washington county, Indiana, Avar rant and defend unto Christena Smith, of the same place, and to her heirs and assigns, the receipt of Avhich is hereby acknoAvledged, the folIoAving real estate” (here follows a description of the land), “on this condition : I, the said Jacob Smith, is to have and to hold full possession of the above described lands during my natural life, and to hold appurtenances unto her and her heirs and assigns forever. Witness the hand and seal of the said Jacob Smith this 19th day of March, 1862.” The instrument- is properly signed, sealed and acknoAvledged as a deed, and Avas, by the person Avho executed it, caused to bo recorded as such. It is no doubt true that an instrument purporting to be a deed will be effectual if it contains in any part apt words of conveyance. While in all well drawn deeds the Avords of conveyance are placed in the appropriate part, still, if found in any part, the instrument Avill be considered to be a deed, and, as such, enforced. Kenworthy v. Tullis, 3 Ind. 96. While it is true that if in any part of the instrument apt Avords of conAmyance are used the instrument Avill be treated as a deed, it is also true that if no such words can be found in any part it Avill be deemed utterly devoid of force. Davis v. Davis, 43 Ind. 561. [180] Opinion filed at the May term, 3882. Petition for a rehearing overruled at the November term, 1882. Instruments will be so construed as to carry into effect tbe intention of the parties, but there must always be sufficient words to enable the courts to ascertain from the instrument what this intention was. Courts can not, however, make contracts for the parties. It is not their province to write in an instrument words which will make it operate as a deed, where none of that character have been written by the parties themselves. The rule that courts will so construe an instrument as to make it effective does not mean that courts shall inject into it new and distinct provisions. The instrument before us contains no words of conveyance, and we have no authority to put any into it. If the appellant was seeking the correction of a mistake, or the reformation of a writing, we should have quite a different case; but he is not doing this. He is simply affirming that the instrument is, on its face, a valid and effective deed. Christena Smith, named in the foregoing instrument, was the daughter of Jacob Smith, and intermarried with the appellant, who urges a further claim to the real estate as her surviving husband, she having died some time subsequent to the marriage. The claim is groundless, for it appears that at the time of Christena’s death her father was living, and that he afterwards made a testamentary disposition of all his property, and this of course cut off all claim that any heir of his deceased daughter could have had. If the surviving husband could be deemed an heir in the strict sense, he would take nothing by descent. Judgment affirmed.