Kelly v. Covington

Sykes, J., delivered the opinion of the court. The appellee, Mrs. A. L. Covington, filed a' bill in the chancery court against the appellant, L. S. Kelly, to cancel an instrument of writing signed by Mrs. A. B. Payne, which instrument will be fully set out herein below. Some time subsequent to the execution of this instrument Mrs. Payne by deed conveyed the lands involved in this controversy to the appellee. The lower court sustained the prayer of the bill, from which decree this appeal is prosecuted. The only point at issue is whether or not this instrument of writing below set out conveyed any interest whatever in the lands in question to the appellant. This instrument reads as follows: “Mrs. A. B. Payne to L. S. Kelly. “This contract made by and between Mrs. A. B. Payne, party of the first part, and L. S. Kelly, party of the second part, witnesseth: That for and in consideration of the said second party caring for and providing the said first party with sufficient food, clothing, medical attention and general care during her natural life, she does this day bargain, sell, convey and warrant the second party the following land, to wit: The north forty-one (41.) acres of the northwest quarter of section 13, township 7, range 4 east, in Union county, Miss. But this conveyance is not to take effect until the death of the first party, at which time it shall be in full force and effect, only to be defeated by a failure of consideration herein named by the party of the second part. “The said second party is to receive all of the rents and income from said premises and to defray all expenses incident to the protection and care of same during his occupancy. [665] “Witness my signature October 25, 1915. Mes. A. B. Payee.” “Witness: B. 0. Bell and W. H. Goddard. “State of Mississippi, County of Union. “Personally appeared before me, 0. S. Cullens, chancery clerk in and for said county and state, B. C. Bell, one of the subscribing witnesses to the foregoing contract, who, being first duly sworn, deposeth and sayeth that he saw the within named Mrs. A. B. Payne, whose name is subscribed thereto, sign, and deliver the same to the said L. S. Kelly, that this deponent subscribed his name as a witness thereto in the presence of the said Mrs. A. B. Payne, and that he saw other subscribing witness, W. H. Goddard, sign the same in the presence of the said Mrs. A. B. Payne and that .the witnesses signed in the presence of each other on the day and year therein named. “Given under my hand and seal, at office, this, the 25th day of October, 1915. “C. S. CulleNS, Clerk.” Though this instrument is called a contract, the first part of it is similar to a deed. Following, however, that part is the sentence: “But this conveyance is not to take effect until the death of the first party, at which time it shall be in full force and effect, only to be defeated by a failure of considerations herein named by the party of the second part.” This sentence expressly states that the instrument is not to be operative until the death of Mrs. Payne. The last clause in the instrument in reality conveys nothing, but states that Kelly is to receive the rents and the income and defray the expenses during his occupancy. By it he is not conveyed the right of possession nor anything else. The plain and unambiguous part of the instrument is that part which states that it shall not take effect until the death of Mrs. Payne. [666] In the case of Martin v. Graham, 114 Miss. 653, 75 So. 447, it was held that under section 2762, Code of 1906 (section 2266, Hemingway’s Code): “Any interest in property may be deeded to vest immediately or in the future, but the deed must be effective as conveying some interest in the property. In other words, the maker in the deed must part with his jus disponendi of the property to extent of the deed. . . . Nothing was to take effect until after thé death of the signers of it.” The case of Cox v. Reed, 113 Miss. 488, 74 So. 330, Simpson v. McGee, 112 Miss. 344, 73 So. 55, and Thomas v. Byrd, 112 Miss. 692, 73 So. 725, are all directly in point and sustain the decree of the lower court. Affirmed.