Brinson v. Sandifer

• Decision Date: 15 October 1906
• Citation: 42 So. 89,90 Miss. 41
• Court: Mississippi Supreme Court
• Parties: SARAH E. BRINSON v. MARY SANDIFER ET AL

42 So. 89

90 Miss. 41

SARAH E. BRINSON v. MARY SANDIFER ET AL

Supreme Court of Mississippi

October 15, 1906

March 1907

FROM the chancery court of Rankin county, HON. JAMES L. MCCASKILL Chancellor.

Mrs Sandifer and others, the appellees, were complainants in the court below; Mrs. Brinson, the appellant, was defendant there. From a decree in complainants' favor the defendant appealed to the supreme court.

The facts are stated in the opinion of the court.

Decree reversed and bill dismissed.

William Buchanan, for appellant.

The whole instrument must be construed together, the intent of the grantor ascertained, and the instrument upheld, if possible. Goosey v. Goosey, 48 Miss. 219.

The intent of the grantor seems to be clear that S. E. Gatlin should own the land during her lifetime and then it should belong to Mrs. Brinson.

He does not reserve the right to revoke any part of the instrument and does not afterwards attempt to make any other disposition of it.

The deed is complete, no further act on the part of T. C. Gatlin remained to give it full effect and the title is irrevocable. McDaniel v. Johns, 45 Miss. 632.

The title to Mrs. Brinson is in presenti though not to take effect in possession until after the death of Mrs. Gatlin (not T. C. Gatlin).

Sidney L. McLaurin, for appellee.

The instrument does not pass any title whatever to appellant Mrs Brinson for two reasons:

First. It conveys from T. C. Gatlin, husband, to S. E. Gatlin, wife, a life estate, and then adds "and at the end of Mrs. S. E. Gatlin's life, I will this property to Mrs. Sarah Elizabeth Brinson all her lifetime, and after her Mrs. Sarah Elizabeth Brinson's lifetime, said described property goes to her children and their heirs and assigns forever." There are no words of conveyance to Mrs. Brinson in the instrument. It was only an expression of a desire on his part that, at his wife's death, the land should go to his daughter, Mrs. Brinson. If properly attested as a will it would have been good as a will, but not as a deed. There are no words of grant to Mrs Brinson.

Second. There is another reason why this writing could not be effective as a deed: Estates in fee-tail are prohibited. Gatlin attempted to convey the land to his wife, Mrs. S. E. Gatlin, for her lifetime, and at her death to his daughter, Mrs. Brinson, and at the death of Mrs. Brinson to her children, and at the death of Mrs. Brinson's children to their heirs. This carries it one step further than is allowed by sec. 2436, Code 1892, and created an estate in fee simple in Mrs. S. E. Gatlin; and at her death it descended to her heirs, appellees and appellants.

OPINION

CALHOON, J.

T. C Gatlin owned the land in controversy, and executed, his wife joining, an instrument in which he says: "I hereby grant, bargain, sell, convey and warrant...