W. C. Ellis & Co. v. Walker

Smith, J., delivered the opinion of the court. The deed from William P. Smith to Elias Smith and Margaret Smith, his wife, executed in July, 1861, which the reporter will set out in full, under the law then in force, conveyed to them an estate by entireties, and consequently at the death of the husband the wife became the sole owner of the land therein described. Hemingway v. Scales, 42 Miss. 1, 97 Am. Dec. 425, 2 Am. Rep. 586; McDuff v. Beauchamp, 50 Miss. 531. It is true that in referring to the heirs and assigns of the grantees in the deed they are described as his heirs and assigns; but this was evidently a clerical error, and, at most, can only be said to make the deed ambiguous. The grantees, however, are specifically designated in the deed, and it is hardly possible that the grantor intended to eliminate one of them by merely using the masculine pronoun “his” in referring to the heirs and assigns, instead of the pronoun “their.” There are several errors of this character in the deed. It recites that “the grantor do grant, bargain, and sell,” etc., “all our right, title,” etc., and warrants the title against all parties claiming through and under them. This being true, the deed executed by Margaret Smith, after the death of her husband, to J. W. Adcock, vested in him the fee to the land. Counsel for appellees in their brief seem to argue that this deed to Adcock should be canceled for the reason that he failed to comply with his contract to support the grantor therein. But this question does not arise, for the reason that the bill was not filed for that purpose and contains no reference to this 'deed at all. It was filed on the theory that appellees were entitled to a partition of the land, for the reason that it was owned by Elias Smith at his death in fee, and that they (appellees) were Ms legal heirs. The decree of the court below is reversed and the cause dismissed. Reversed.