Dunbar v. Aldrich

Tebral, J., delivered the opinion of the court. The original bill in this ease sought to have set off to complainants a one-seventh part of Rustic Lawn plantation, in Jefferson county, to which they claimed a legal title. The original bill was filed July 2, 1897, and it was amended September 28, 1897, by introducing additional matter and' other parties to the suit, and it was finally dismissed; but before its dismissal, and on the day thereof, further leave to amend the bill, by making new parties, was requested of the court, and by it denied. Neither by the original bill nor by it as amended were all necessary parties brought before the court as to the relief finally claimed, but at the time of the dismissal of the case the names of all the parties necessary to adjudicate the entire title 'to the property, in any view of the facts, were named in the bill, and might have been readily brought before the court by the amendment proposed. From the record it appears that the Rustic Lawn plantation was, in 1844, the property of John W. Dunbar, who in that year made his last will and testament, by which he devised said plantation to his brother, William H. Dunbar, for his life, and after his death to his children. But because said will was attested by two witnesses only, it was inoperative to pass real estate, whereupon the brothers and sisters of William II. Dunbar, except Mrs. Martha D. Claiborne, to whom said land descended, out of respect to the wishes [706] of their deceased brother, as expressed in his last will and testament, executed their several deeds of conveyance of said Rustic Lawn plantation to said William Ii. Dunbar, and each of them in the recital part of the conveyance declared his purpose to give validity or effect to the will of John W. Dunbar by conveying said plantation to said William H. Dunbar for life, with remainder in fee to his children; but in the granting’ or operative part of each and all of said deeds a conveyance of said plantation was made to William II. Dunbar and his heirs in fee simple. The contention of appellants, that by construction of law William H. Dunbar took only a life estate, cannot be maintained. It is true, as is said by appellants, that a deed is to be construed ex anteeedentibus et coyisequentibus ; but it is also a settled rule of construction that the meaning or intention of the grantor is not the object sought, but what is the meaning of the words used by him in making the grant. And especially is it a rule of interpretation of a deed that an intention manifested in the recitals of a conveyance will be controlled by the terms of the granting part of the deed. In Monypenny v. Monypenny, 9 H. L. Cas., 146, Lord Wensleydale said: “The question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed — a most important distinction in all classes of construction, and the disregard of which often leads to erroneous conclusions.” In Bailey v. Lloyd, 5 Russ., 344, Sir John Leach,' HI. R., said: “If the operative part of a deed be doubtfully expressed, there the recital may safely be referred to as a key to the intention of the parties; but, where the operative part of the deed uses language which admits of no doubt, it cannot be controlled by the recital.” Romilly, HI. R., in Young v. Smith, 35 Beav., 90, said: “It is of the greatest; consequence to keep distinct the different parts of deeds, and to give to recitals and to the operative part their proper effects. I have always held that, where the recitals and operative part of a deed are at variance, the operative part must be officious, [707] and the recitals inofficious. I do not say inoperative, for the recitals may be useful in explaining ambiguities.” In Walsh v. Trevanion, Patteson, J., said: “When the words in the operative part of a deed of conveyance are clear and unambiguous, they cannot be controlled by the recitals or.other parts of the deed.” 69 E. C. L., 750. Erom a consideration of these authorities — and we know of none contradicting them — it must be clear that the several deeds of the brothers and sisters, or of their descendants, conveyed to William EL Dunbar a fee-simple title to Rustic Lawn plantation. The grounds, therefore, upon which the heirs of William EL Dunbar based their claim to the property in controversy were without support in law, and the decision of the chancellor denying an amendment of the bill in order to make them parties thereto is, as we think, correct. It only remains to consider what interest, if any, the grantees of Mrs. Martha Claiborne have in Kustic Lawn plantation. Vvilliam II. Dunbar died in 1887, and had, in 1860, conveyed this .plantation, by way of mortgage, to secure L. D. Aldrich hi the payment of a large sum of money, which mortgage was foreclosed in 1868, when Mr. Aldrich became the purchaser thereof; and during the life of William EE. Dunbar, and until the title to the property passed from him by sale under said mortgage, he claimed to be the sole owner thereof, as against Mrs. Claiborne, as well as all others, and since the purchase thereof by L. D. Aldrich, and a deed thereof to him of date June 1, 1870, he and his devisees had been, before suit brought, for more than ten years in the 'adverse possession and enjoyment of said plantation, claiming the fee against all the world; and we think the title of Mrs. Claiborne, acquired by her as an heir of John W. Dunbar, is long since barred by the statute of limitation of ten years. Affirmed.