Dalton v. Eller

• Decision Date: 05 June 1926
• Citation: 284 S.W. 68,153 Tenn. 418
• Parties: DALTON v. ELLER.
• Court: Tennessee Supreme Court

284 S.W. 68

153 Tenn. 418

DALTON v. ELLER.

Supreme Court of Tennessee.

June 5, 1926

Appeal from Chancery Court, Macon County; W. R. Officer, Chancellor.

Suit in equity by R. O. Dalton against A. J. Eller. From a decree of dismissal, complainant appeals. Affirmed.

Roberts & Roberts and Grace & Grace, all of Nashville, for appellant.

Baskerville & McGlothlin, of Gallatin, and C. C. Collingsworth, of La Fayette, for appellee.

HALL J.

The question presented in this cause is as to the proper construction of a deed executed by W. J. Eller and wife Nancy E. Eller, to the complainant and J. H. Merryman jointly. The complainant later took a deed from Merryman for his entire interest in said property.

The deed from W. J. Eller and wife, Nancy E. Eller, to complainant and Merryman reads as follows:

"State of Tennessee, Macon County:

Know all men by these presents, that we, W. J. Eller and wife, Nancy E. Eller, for and in consideration of the sum of five thousand dollars paid and to be paid as follows: Two thousand dollars cash in hand paid, the receipt of which is hereby acknowledged, and a promissory note, to amount of fifteen hundred dollars and due one year after date, with 6 per cent. interest from date, and a second note to amount of fifteen hundred dollars due two years after date, with 6 per cent. interest from date. It is further agreed that payments on these notes can be made in payments of five hundred or more dollars, at any time from date of said notes until paid.

Have this day bargained and sold and do hereby transfer and convey unto J. H. Merryman and R. O. Dalton, jointly, their heirs and assigns forever, our entire mill property and fixtures of every kind thereunto belonging, and including the lot of land on which the said mill is now located and situated in the fourth civil district of Macon county, Tenn., and bounded as follows, to wit: On the west and north by Mrs. Paul Johnson, and on the east and south by R. B. Merryman and Paul Johnson, containing about 1 1/2 acres more or less.

All property on this lot of land is conveyed, except 30 by 36 feet in dimensions, one 2-room ironclad storehouse, now occupied and owned by A. J. Eller, which is not conveyed. The said A. J. Eller has the privilege to use the land that said house is on and 10 feet in addition all around said storehouse, so long as said A. J. Eller uses this storehouse in his merchandise business, but, when he declines to use said house further for said business, then, in that event, said J. H. Merryman and R. O. Dalton have the privilege to buy said storehouse at cost of building; but, if the said J. H. Merryman and R. O. Dalton refuse to buy the same, then said A. J. Eller must remove it at once.

To have and to hold the said mill and mill property, and the lot of land on which the same is located to the said J. H. Merryman and R. O. Dalton, their heirs and assigns forever. And we warrant the title to same to the said J. H. Merryman and R. O. Dalton, their heirs and assigns, against the lawful claim or claims of all for whomsoever. We further warrant this property to be unincumbered, except as above herein mentioned.

This the 30th day of January 1917.

W. J. Eller.

Nancy E. Eller."

W. J. Eller and wife, Nancy E. Eller, are the father and mother of the defendant, A. J. Eller.

The bill in this cause was filed by complainant February 6, 1924, seeking to have said deed construed, and to have the following portion of said deed canceled as a cloud upon his title:

"All property on this lot of land is conveyed, except 30 by 36 feet in dimensions, one 2-room ironclad storehouse, now occupied and owned by A. J. Eller, which is not conveyed. The said A. J. Eller has the privilege to use the land that said house is on and 10 feet in addition all around said storehouse, so long as said A. J. Eller uses this storehouse in his merchandise business, but, when he declines to use said house further for said business, then, in that event, said J. H. Merryman and R. O. Dalton have the privilege to buy said storehouse at cost of building; but, if the said J. H. Merryman and R. O. Dalton refuses to buy the same, then said A. J. Eller must remove it at once."

The chancellor dismissed the bill, and complainant appealed, and has assigned errors.

Through his first assignment of error complainant insists that the chancellor erred in dismissing his bill and taxing him with the costs.

Through his second assignment of error complainant insists that the chancellor erred in decreeing that the reservation or exception made in the deed from W. J. Eller and wife, Nancy E. Eller, to complainant and J. H. Merryman, was valid.

Through his third assignment of error complainant insists that the chancellor erred in not decreeing a reformation of said deed, and in not canceling that portion of said deed in which it was attempted by the grantors to make a reservation or exception to the defendant, A. J. Eller.

It is the contention of complainant that the attempted reservation or exception of the storehouse, and the use of 10 feet of ground around it, is invalid because it was made to defendant, who was a stranger to the deed; that no words of conveyance to the defendant of the storehouse, or of any other property, appear in the deed, and therefore the deed could not carry any title to defendant; that the whole estate of the grantors had been conveyed to complainant and Merryman in the granting clause of the deed, and the later attempt by the grantors to reserve to a stranger a portion of the property already conveyed constituted, under the technical rules of construction, an exception which was repugnant to the granting clause, and is therefore invalid and of no binding force upon complainant, and the chancellor was in error in not so

decreeing.

It is a fundamental principal in the interpretation of deeds that the expressed intention of the parties shall govern. Beecher v. Hicks, 7 Lea, 207; Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109; Savage v. Bon Air Coal, etc., Co., 2 Tenn. Ch. App. 594; Topp v. White, 12 Heisk. 165; Carnes v. Apperson, 2 Sneed, 562; Grimes v. Orrand, 2 Heisk. 298.

The courts have most wisely abandoned technical rules in the construction of conveyances in this state, and look to the intention of the instrument alone for their guide; that intention to be arrived at from the language of the instrument read in the light of the surrounding circumstances. Williams v. Williams, 16 Lea, 164; Kissom v. Nelson, 2 Heisk. 4; Posey v. James, 7 Lea, 98; McNairy v. Thompson, 1 Sneed, 142.

In Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, the court said:

"It is insisted for the complainants that the language 'her heirs in fee-simple forever' cannot be controlled by the reservation or provision for the property to revert to the grantor contained in the first habendum (there being, as is noticed, two habendums); a provision in the habendum repugnant to the estate before granted being void.

We may concede all that is contended for as to this rule of construction at common law, and it is a sufficient answer thereto to say that the rules of the common law, which looked at the granting clause and the habendum and tenendum as separate and independent portions of the deed, each with its particular function and office, have long since become obsolete in this country, and certainly in this state.

The true rule is to look to the whole instrument, without reference to formal divisions, in order to ascertain the intention of the parties, and not to permit antique technicalities to override such intention.

This is so not only by legislation but by adjudication. Code (M. & V.) §§ 2812-2820; 3 Wash. Real Prop. p. 438, § 61; Beecher v. Hicks, 7 Lea, 212; Hanks v. Folsom, 11 Lea, 560. In both of which cases Judge Cooper has presented the adjudged cases with his usual fullness of research, so that further discussion would seem worse than needless."

In Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, it...