Barksdale v. Barksdale

• Decision Date: 10 February 1908
• Citation: 92 Miss. 166,45 So. 615
• Court: Mississippi Supreme Court
• Parties: SARAH BARKSDALE ET AL. v. WEET BARKSDALE

45 So. 615

92 Miss. 166

SARAH BARKSDALE ET AL. v. WEET BARKSDALE

Supreme Court of Mississippi

February 10, 1908

October 1907

FROM the chancery court of Grenada county, HON. JULIAN C. WILSON Chancellor.

Mrs Sarah Barksdale and others, appellants, were complainants in the court below, and Mrs. Weet Barksdale, appellee, executrix and sole devisee under the will of her deceased husband, John H. Barksdale, was defendant there. From a decree in defendant's favor dismissing the bill, complainants appealed to the supreme court.

In 1903, Hickerson H. Barksdale dying testate, devised to his wife, appellant Sarah Barksdale, a life estate in designated lands, with remainder in fee, after her death, to his nephew John H. Barksdale and five other persons. He also devised jointly to said John H. Barksdale and another nephew a separate tract of land specifically referred to in the will as "my Minter Place, described in deed from W. H Aldridge and wife to me, on February 23, 1878, recorded in Book G., pages 242 and 243, of the land records of Grenada county." Subsequently, in April, 1904, John H. Barksdale executed to his wife, the appellee, Mrs. Weet Barksdale, a deed of conveyance of realty and personalty described as "all the lands bequeathed to me by the will of my uncle Hickerson H. Barksdale. All of said lands are lying, and being situated, in Grenada county, known as the Minter Place, in the state of Mississippi," and all the personalty which he owned or had an interest in, being then on the Minter place. Shortly afterward, in May, 1904, John H. Barksdale, died testate, and his widow, the appellee, his sole devisee and legatee, qualified as executrix under his will. His estate proved to be and was adjudged insolvent. Thereafter, in 1906, the appellants, Mrs. Sarah Barksdale and others, creditors, owning probated and unpaid claims against the estate of John H. Barksdale, deceased, instituted a suit in chancery against Mrs. Weet Barksdale, appellee, as executrix and sole devisee under the will of her deceased husband, praying that the remainder interest in lands other than the Minter Place devised to John H. Barksdale under the will of Hickerson H. Barksdale should be subjected to the payment of their debts. The claim of appellants, as set forth in the bill, was that the deed from John H. Barksdale, deceased, to Mrs. Weet Barksdale only conveyed to her the Minter Place and personalty thereon. The appellee's answer, both as executrix and in her individual capacity, denied that John H. Barksdale at his death was the owner of the remainder interest. The court below held that not alone the Minter Place, but all of the lands devised by Hickerson H. Barksdale to John H. Barksdale, were conveyed by the deed to Mrs. Weet Barksdale, appellee and dismissed the bill.

Affirmed.

Wm. C. McLean, for appellants.

The following are the cardinal principles applicable in the construction of deeds: (1) The deed should be so construed that, if possible, all parts of it may stand together. (2) In construing a deed containing conflicting clauses, all of its parts must be consulted in arriving at the intentions of the parties, so as to ascertain what land is actually conveyed. (3) A deed should be construed as a whole and all of its parts, if possible, be made to harmonize. (4) Where two parts of a deed may well stand together, consistent with the rules of law, they shall be construed to have that effect rather than be held to be redundant. (5) Different descriptions in a deed will be reconciled, if possible. (6) A construction which requires that an entire clause of a deed should be rejected will be adopted only from unavoidable necessity. (7) Where a general description is followed by a particular description, the particular description controls and the other will be rejected. 16 Am. Dig. (Cent. ed.), § 267a, et seq.; 4 Am. & Eng. Encyc. Law, 799; Devlin on Deeds, § 1039; 1 Greenleaf on Ev., § 301.

Applying the above principles in the construction of the deed here in question, it becomes apparent that the purpose and intent of the grantor, John H. Barksdale, was to convey only the "Minter Place."

Paraphrasing the deed, without in any way altering its meaning or destroying its sense, it should read as follows (omitting the formal parts): "I do hereby grant, bargain, sell, convey and warrant to her all the lands bequeathed to me by the will of my uncle, Hickerson H. Barksdale, known as the Minter Place, all lying and being situated in said Grenada county, Mississippi." If it were the intent to convey all of the lands of every description bequeathed (devised) to the grantor, why insert in the deed the expression, "known as the Minter Place?"

By construing the deed so as to limit the lands conveyed to those comprising the Minter Place we preserve every part and parcel of the conveyance, rejecting nothing and making all parts to harmonize. If, on the other hand, the conveyance is to be construed so as to embrace all of the lands devised to the grantor by the will of his uncle, we must of necessity strike out entirely the expression, "known as the Minter Place," as surplusage. Yet if we strike out such expression as surplusage, we strike out that portion of the deed which can be perfectly consistent with the other portions of it, and thereby we will make a new conveyance; for by no sort of construction can the deed be held to convey other lands than in Grenada county.

The court below held that all of the conveyance after the words, "Hickerson H. Barksdale," was surplusage. If this were true, then the conveyance would read practically as follows: "I do hereby grant, bargain, sell, convey and warrant to her all the lands bequeathed to me by the will of my uncle, Hickerson H. Barksdale." This was, for the reasons above shown, error. The draftsman of the deed evidently understood and intended to describe more fully the land conveyed by adding the clause "all of said lands are lying and being situated in said Grenada county, State of Mississippi, known as the Minter Place." There is nothing in this clause which will not harmonize with the preceding parts of the conveyance.

When we look to the will of Hickerson H. Barksdale, it is manifest that the intention of the grantor, John H. Barksdale, was to convey, by his deed, only his interest in the Minter Place. His uncle, Hickerson H. Barksdale, did not devise to him all of the Minter Place, but instead only an interest in it. When the grantor, John H. Barksdale, undertook to convey by describing the lands as he did, his object in making use of the expression, "all the lands bequeathed to me by the will of my uncle, Hickerson H. Barksdale," and joining to it the language in the deed following thereafter, was to refer to the will for a description of all the lands known as the Minter Place, and not to convey all of the lands which were devised to him by his uncle.

The conclusion of the deed also shows that the grantor's purpose was to convey only the Minter Place, because he sells and conveys the personalty on the Minter Place. It is certainly admissible to look to the part of the conveyance conveying the personalty in order to determine what lands were intended to be conveyed.

W. M. Mitchell and J. J. Slack, on the same side.

The first rule for the construction of deeds is that every portion of the deed must be retained, if possible, and the description so construed that no part of the deed will be rejected or rendered inoperative. Salisbury v. Andrews, 19 Pick. (Mass.), 250.

The clause, "all the lands bequeathed to me by the will of my uncle, Hickerson H. Barksdale," was by the grantor intended solely to describe and express what interest the grantor had in the Minter Place. Instead of stating that he conveyed an undivided half interest in the Minter Place (the extent of his ownership therein), he simply wrote that he conveyed all the lands bequeathed to him by the will of his deceased uncle, and known as the Minter Place.

If we admit that the two descriptive clauses of the deed are so inconsistent and repugnant as to make it impossible to harmonize them, still our contention that the deed must be so construed as to pass only the Minter Place, is the only tenable one under the law. A particular description controls a general description unless the particular description is so uncertain and obscure as to render it necessary to resort to the general description to render it certain. Vallandingham v. Taylor, 64 S.W. 725; Plummer v. Gould, 92 Mich. 1; Smith v. Sweet, 90 Me. 528; Beardsley v. Nashville, 64 Ark. 240.

To give the deed the construction put upon it by the court below requires that an entire clause which of itself is definite and certain, describing land by its well known name, shall be entirely eliminated from the deed and rendered absolutely of no effect. While, on the other hand, to give effect to the clause, "known as the Minter Place" makes the whole deed effective, makes the description certain and definite, and conforms to all of the rules of construction.

S. A. Morrison, for appellee.

The phrase "known as the Minter Place," does not of itself show the slightest intent in the grantor to limit or curtail the prior grant in the deed in any way whatever; its purport being merely to reiterate and describe "all the lands bequeathed to me by the will of my uncle, Hickerson H. Barksdale," and, as such, it cannot be held to limit the prior grant which is a far more correct and plainer description than the so-called limitation.

If the phrase, "known as the Minter Place," is in conflict with the rest of the deed, in so far as description of the lands conveyed is concerned, which part of the deed is to prevail? Certainly the prior and fuller description, which of itself completely...