McKinney v. Settles

Bates, Judge, delivered the opinion of the court. It is difficult to determine what was intended by the maker of the instrument under which the plaintiff claimed title. In the memorandum attached to the instrument, and signed by John McKinney, it is called a codicil or supplement to his last will and testament, whilst in the certificate of acknowledgment the whole are called “ the foregoing deeds of gift.” It may not be necessary to define what is the character of the instrument, for if it be not a deed of conveyance in presentí, the plaintiff can not recover upon it. In order to determine whether it be such a deed, the whole instrument must be taken together, and effect given, if possible, to every part of it. It does not contain the usual operative words of conveyance, and it contains an obligation to make (in the future) “ a good, sufficient right and title to the said described tract of land, clear from me or any of the rest of my heirs, to the whole, sole right and property of my said son, James H. McKinney, and his heirs, forever.” It appears to be reasonable, upon consideration of the whole instrument, to suppose that John McKinney believed that he had no power then to convey, and, therefore, he, in order to make a sort of partition of lands among his [545] children, bound himself under a penalty to convey to each one a particularly described tract of land, so soon as he should have power to do so. Taking this to be the view and intention of John McKinney, we must see that he used words apt for that purpose. The only words which might by any construction be deemed operative words of present conveyance are the words “ sign over.” We can not, however, think that they import more than an assignment of John McKinney’s interest in the land, the title to which was then imperfect and inchoate, and, therefore, not operating as a present conveyance of the land itself sufficient to maintain an action of ejectment in the name of James H. McKinney. In the manner in which this case comes up, no question arises whether an after-acquired title by John McKinney would enure to the benefit of James H. McKinney. The judgment below is affirmed. The other judges concur.