Josey v. Johnston

GARDNER, J. (1, 2) There are but two questions presented for consideration on this appeal. The first, and the one of prime importance, concerns the proper construction to be placed on the instrument executed by William Davison to his daughter, M. M. Davison, November 17,1894, set out in the foregoing states ment of the case. This instrument was executed on the same day and at the same time the grantor was dividing his land among his children. The grantee, said unmarried daughter, as stated, was residing with her father on this 80 acres, which was the home place; and we are reasonably satisfied from the evidence that this instrument was delivered by the grantor to the grantee immediately following its execution. The indorsement thereon shows that it was recorded in April, 1897. The general principles to be applied by the courts, in determining whether an instrument is a deed or a will, have been many times stated in the numerous cases decided in this court, and need no repetition here. Nothing of value can be added to what has already been said upon the subject. Some of the most helpful decisions of this court, as well, also, as of other jurisdictions, are to be found collated in the recent case of Phillips v. Phillips, 186 Ala. 545, 65 South. 49, Ann. Cas. 1916D, 994. The intention of the grantor must be the polestar in considering the character of the instrument. — Mays v. Burleson, 180 Ala. 396, 61 South. 75. Upon a careful consideration of the language of the above-quoted instrument, and of the surrounding facts and circumstances here disclosed, we are of the opinion that it was the grantor’s intention that it operate as a deed. We, therefore, so construe it. — Phillips v. Phillips, supra; Jenkins v. Woodward Iron Co., 194 Ala. 371, 69 South. 646; Abney v. Moore, 106 Ala. 131, 18 South. 60. (3) The evidence discloses that very soon after respondent and her husband moved to the home of Davison, immediately following the death of the daughter, M. M. Davison, a deed was executed by William Davison, who was then nearly 85 years old, conveying to them this 80 acres of land, as well as all other property owned by him, that soon thereafter respondent and her husband left this home place, and that William Davison was then taken in charge by complainant. There is evidence tending to show that said Davison was in very feeble health and of unsound [486] mind at the time of the execution of the deed to respondent. It would serve no purpose to discuss the evidence touching the mental incapacity of Davison. Suffice it to say that upon a most careful review of all the evidence in the case on this question, we are persuaded that the chancellor was fully justified in holding the deed to Bettie Josey and her husband, bearing date of October 7, 1904, ineffective and void. We conclude, therefore, that the decree of the court below was in all respects correct, and it is accordingly affirmed. Affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.