Berry v. Cooley
| Decision Date | 03 December 1940 |
| Docket Number | 29671. |
| Citation | 109 P.2d 1081,188 Okla. 426,1940 OK 473 |
| Parties | BERRY et al. v. COOLEY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 11, 1941.
Syllabus by the Court.
1. Where a contract is executed which refers to and makes the conditions of another instrument a part of it, the two will be construed together as the agreement of the parties.
2. Where a deed is executed by a husband to his wife purporting to convey an absolute estate, but is made pursuant to and as a part of a property settlement in contemplation of divorce a subsequent or so-called subordinate clause contained in the contract of conveyance limiting the estate of the wife upon a contingency, and creating in the minor children of the parties a remainder upon such contingency or conditional limitation, is inconsistent neither with the nature of the grant nor with the intention of the parties. Secs. 9474 9477, O.S.1931, 15 Okl.St.Ann. §§ 166, 169.
3. Contracts entered into in contemplation of divorce by husband and wife providing for the support and maintenance of their minor children are not to be classed as contracts made expressly for the benefit of third persons within the meaning of section 9409, O.S.1931, 15 Okl.St.Ann. § 29.
4. A grant of land by a husband to his wife in contemplation of divorce, to terminate on her remarriage, with remainder to their children constitutes an estate for widowhood and is not void under section 9495, O.S.1931, 15 Okl.St.Ann. § 220, as a contract in restraint of marriage in the absence of a manifest intent disclosed therein to restrict the wife in that respect.
Appeal from District Court, Carter County; J. I. Goins, Judge.
Action by Georgia E. Cooley against Anita Berry, Eula Mae Berry Harold Lloyd Berry and Oscar Berry to quiet title to realty. The trial court rendered judgment awarding a life estate to the plaintiff and remainder in fee to the defendants, and the defendants appeal.
Judgment reversed, and cause remanded with directions to enter judgment for defendants.
James H. Mathers, of Oklahoma City, for plaintiffs in error.
Sigler & Jackson, of Ardmore, for defendant in error.
This is an action by a mother against her minor children to quiet title to real estate. The trial court rendered judgment awarding a life estate to plaintiff and remainder in fee to defendants.
The real estate in question constituted the subject matter of a property settlement contract entered into between the plaintiff herein and her husband, the father of the defendants, in contemplation of their divorce action then pending. The present case involves the construction and interpretation of that contract, the divorce decree and a certain deed executed by the husband pursuant thereto.
The property settlement contract provided that the purpose thereof was to settle the property rights of the parties and the question of custody of the children, the defendants herein. It was agreed that the plaintiff should have custody of said children, and that the husband should convey the land in controversy to the plaintiff in full settlement of all claims she might have against the husband including alimony and the support of the children. The contract contained the further provision concerning the land as follows:
Said contract was set out in full in the divorce decree and approved by the court, and the plaintiff enjoined from encumbering or disposing of the land in any manner contrary to the agreement.
Pursuant to said contract and decree the father executed a quitclaim deed whereby he conveyed the land to plaintiff. The deed was in regular statutory form, with the exception of a provision which reads as follows: "This deed is executed in conformity to an agreement and stipulation and decree of divorce entered on the 10th day of June, 1937, in the case of Georgia E. Berry plaintiff vs Oscar Berry, defendant, No. 22537, in the District Court of Carter County, Oklahoma, and subject to the conditions therein stated." This provision followed immediately after the description of the land.
Thereafter the plaintiff and the father of defendants appeared in the divorce case and obtained orders purporting to modify said divorce decree so as to permit plaintiff to encumber the land and to marry without jeopardizing her alleged life estate in the land.
Thereafter plaintiff encumbered the land and married. She then commenced this action against the children to quiet title, claiming that the above deed was an absolute grant conveying to her a fee simple estate.
As stated above, the trial court's judgment gave to plaintiff a life estate, and to defendants the remainder in the land. The defendants appeal.
It is urged in behalf of defendants that the property settlement agreement, the original divorce decree, and the deed constituted the contract of conveyance. It is contended that the transaction as a whole served to vest in plaintiff a defeasible life estate, determinable upon her remarriage, and to vest in defendants a contingent remainder, or, that is to say, a remainder on conditional limitation, sec. 11765, O.S.1931, 60 Okl.St.Ann. § 40, which, when created, becomes a vested estate, sec. 11755, O.S.1931, 60 Okl.St.Ann.§ 30, and therefore not subject to divestiture by the subsequent acts of the grantor. Cowle v. Cowle, 114 Kan. 605, 220 P. 211.
Plaintiff takes the position that the quitclaim deed was an absolute grant to her of the fee simple estate in the land and that the conditions or limitations contained therein or adopted by reference were subordinate to the grant, and wholly inconsistent with the nature thereof and with the main intention of the parties, and must be rejected as merely repugnant, secs. 9474, 9477, O.S.1931, 15 Okl.St.Ann. §§ 166, 169. In support of this contention plaintiff cites a number of decisions; among them are Stone v. Easter, 93 Okl. 68, 219 P. 653; Crookum v. Ketchum, 174 Okl. 468, 50 P.2d 710.
The deed in the instant case refers to and clearly makes the property settlement agreement a part thereof. They are therefore to be construed together as the agreement of the parties made in contemplation of divorce, alimony and support and maintenance of their minor children. Aetna Life Ins. Co. v. Bradford, 45 Okl. 70, 145 P. 316, Ann.Cas.1918C, 373.
In the matter of judicial construction and interpretation of deeds containing conditions or limitations upon the grant, the basic element to be kept in mind is the intended purpose of the deed as gathered from the instrument itself. Although there are many decisions to the effect that any limitation or restriction inserted in a deed which purports on its face to convey an absolute estate in fee simple is subordinate to the general intent of the grant, wholly inconsistent with the nature thereof and the main intention of the parties, and inoperative and void, the intention of the parties nevertheless prevails in all cases.
Regardless of what the common law on the subject may be, present day decisions of the character above referred to are based upon statutes such as sections 9474 and 9477, above, which provide, respectively, that "particular clauses of a contract are subordinate to its general intent," and "words in a contract which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected."
But those decisions, such as are cited by plaintiff, are based upon deeds where the grantor by the purported restriction was not attempting to fulfill a legal duty resting upon him. The restriction in such cases was inserted merely at the whim, caprice or personal choice of the grantor and not in the performance of a legal obligation.
Here the general intent of the contract was to provide alimony for the wife and support for the children of the parties; the nature...
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