Black v. Stephenson

Citation267 S.W. 130
Decision Date03 November 1924
Docket Number(No. 213.)
PartiesBLACK et al. v. STEPHENSON et al.
CourtSupreme Court of Arkansas

Proceeding between Maude Black and others and Willis Stephenson and others. From the judgment rendered, the former appeal. Reversed and remanded, with directions.

Rice & Rice, of Bentonville, for appellants.

W. O. Young, of Bentonville, and G. T. Sullins, of Springdale, for appellees.

SMITH, J.

This appeal presents a controversy between the widow of Willis Stephenson and certain of his heirs over a tract of land in Benton county. Various findings were made by the court, and the respective interests of the parties were adjudged. The court found that the widow of Stephenson was entitled to homestead and dower, and that all the parties took their respective interests subject to these marital rights of the widow. The appeal is from the finding that the widow was entitled to homestead and dower.

The rights of the parties are referable to the following deed; so much of it being copied as is relevant to its proper construction:

"Know all men by these presents, that we, James Smith and Sophronia Smith, his wife, for and in consideration of the sum of four hundred dollars, to us in hand paid by May, Lelia, Thaddeus W., Willis and Annie, and the heirs of Willis Stephenson, do hereby grant, bargain and sell unto the said heirs of Willis Stephenson and unto their heirs and assigns forever, the following lands, lying in the county of Benton and state of Arkansas, to wit: [Description by metes and bounds of the lands conveyed, same being 142 acres.] To have and to hold the same unto the said heirs of the said Willis Stephenson and unto their heirs and assigns forever, with all appurtenances thereunto belonging. And we hereby covenant with the said heirs of the said Willis Stephenson that we will forever warrant and defend the title to said lands against all claims whatever. And I, Sophronia Smith, wife of the said James Smith, for and in consideration of the said sum of money, do hereby release and relinquish unto the said heirs of the said Willis Stephenson all my right of dower in and to the said lands.

"Witness our hands and seals on this 23d day of February, 1878.

                                               his
                                          "James X Smith
                                               mark
                                         "Sofronia Smith."
                

It was the opinion of the court below that the deed was void for uncertainty, in that the grantees were not sufficiently designated, but that, inasmuch as Willis Stephenson had paid the consideration, his children, therein named, being all infants, and had for many years occupied the land, he had acquired the title by adverse possession. That, the deed being void for uncertainty, only the grantor could question Stephenson's title, and the grantor was barred by adverse possession. Upon this finding and the assumption that Stephenson was seized of the land at the time of his death, the court proceeded to adjudge the respective interests of his heirs, and held that all had taken subject to the right of the widow to homestead and dower. Stephenson was survived by 10 children, or the descendants of children, and certain of these heirs had executed to one of the sons a conveyance of their interests, but this son had died, and his interest in the land was apportioned to the other heirs.

We do not set out all these facts which are recited in the decree herein appealed from, as we do not agree with the court below in his construction of the deed. We do not think the deed was void for uncertainty. On the contrary, it is our opinion that the deed was valid as a conveyance to the children of Willis Stephenson who were named in the deed.

It is insisted that if the deed is not held void for uncertainty, as the court below held, that it should be construed as a deed to all the children, or descendants of children, living at the time of the death of Willis Stephenson, which event occurred on May 8, 1911. But we do not concur in that view.

It is true that the undisputed proof shows that Willis Stephenson paid the consideration named in the deed, as his children then living who were named as grantees were infants of tender age; but it is very clear that he did not have the conveyance made to himself.

The habendum clause reads as follows:

"To have and to hold the same unto the said heirs of the said Willis Stephenson and unto their heirs and assigns forever, with all appurtenances thereunto belonging."

We must look to the preamble or the premises of the deed to determine who the "said heirs of the said Willis Stephenson" were, who, with their heirs and assigns, were to have and to hold the land forever, with all appurtenances thereunto belonging. These grantees are named in the premises as "May, Lelia, Thaddeus W., Willis and Annie and the heirs of Willis Stephenson." The words, "and the heirs of Willis Stephenson," must be construed as descriptive of the persons previously named as if the deed had read: "Who are the heirs of Willis Stephenson."

By the use of the word "heirs," "children" may have been intended; but these children are named, and were persons in being. Certainly there was a conveyance to May, Lelia, Thaddeus W., Willis and Annie Stephenson, and if there was in fact an intention that children thereafter born to Willis Stephenson should be included, that intention was ineffective and unavailing, because they were not in being at that time, and a deed to a person not in being is void for uncertainty.

"A deed made of a present estate to a party not living at the time of its execution is void. Where there is a reasonable doubt of either of the parties being in esse at the time the deed is delivered, his existence must be shown as an affirmative fact to render the conveyance operative." Section 123, vol. 1, Devlin on Real Estate (Deeds) (3d Ed.).

But the deed here under review was not void on that account because it named as grantees the five living children of Willis Stephenson, and the rule in such cases is that the conveyance operates to pass the title to the persons in being, to the exclusion of after-born heirs.

In the case of Tharp v. Yarbrough, 79 Ga. 382, 4 S. E. 915, 11 Am. St. Rep. 439, a deed was made to the "heirs of Robert A. Tharp," and it was contended that the word "heirs" should be construed as meaning "children." In construing this deed the Supreme Court of...

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