Deason v. Stone

• Decision Date: 01 February 1910
• Citation: 52 So. 307,166 Ala. 49
• Parties: DEASON v. STONE ET AL.
• Court: Alabama Supreme Court

52 So. 307

166 Ala. 49

DEASON v. STONE ET AL.

Supreme Court of Alabama

February 1, 1910

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Tuscaloosa County; S. H. Sprott, Judge.

Ejectment by Fannie A. Deason against Steve Stone and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Anderson J., dissenting.

Daniel Collier and R. H. Scrivener, for appellant.

J Manly Foster and Oliver, Verner & Rice, for appellees.

ANDERSON J.

The deed in question was construed in the opinion of the court in the case of Findley v. Hill, 133 Ala. 229, 32 So 497, and the question involved was again considered in the cases of Findley v. Deason, 135 Ala. 661, 33 So 1013, and Findley v. Hardy, 135 Ala. 663, 33 So. 1013, and was decided, in these last two cases, by a mere reference to the first case. As we understand the meaning given the deed in the opinion, it was that Murchison Findley took a life estate, with remainder to his descendants living at the time of his death, and in default of such descendants it was to go to the heirs of the grantor. The descendants of the life tenant were synonymous with bodily heirs, and the holding was that Murchison Findley took a life estate, with a remainder to his bodily heirs living at the time of his death. It may be that this is the proper and only reasonable meaning to be given the words employed in the conveyance; and, whether it created a fee tail or not, the remainder could be upheld since the adoption of the Code of 1852.

It is insisted, however, that this deed was executed in 1826, and was controlled by the statute of 1812, as found in Clay's Dig. p. 157, § 37, and which was not referred to or considered in the former opinion. We confess, that the opinion does not discuss or refer to said statute; but if the ruling, to the effect that a fee tail was not created, is sound, then said statute would have no application. If, on the other hand, the deed did create a fee tail, and the court erred in holding to the contrary, then the statute of 1812, being the law when the deed was made, would apply, and Murchison Findley would take the absolute fee thereunder, unless it came within the proviso therein contained. Section 37, as found in Clay's Digest, is as follows: "Every estate in lands or slaves, which now is or shall hereafter be created an estate in fee tail, shall from henceforth be an estate in fee simple, and the same shall be discharged of the conditions annexed thereto by the common law, restraining alienations before the donee shall have issue, so that the donee, or person in whom the conditional fee is vested, or shall vest, shall have the same power over the said estates, as if they were pure and absolute fees: Provided, that any person may make a conveyance or demise of lands, to a succession of donees then living, and the heir or heirs of the body of the remainderman, and default thereof, to the right heirs of the donor in fee simple."

"First. Did this deed create a fee tail under the common law? Second. If it created a fee tail, did it come within the proviso created in the statute? If the first inquiry can be answered in the affirmative, and the second in the negative, then the grantor, Murchison Findley, took the absolute estate in fee simple, under the force of said statute, regardless of what the law is or has been since the execution of said deed. The first inquiry, as we have observed, was answered in the negative in the former opinion, and if the holding there was sound there is no need to answer the second inquiry. On the other hand, the first question has been answered in the affirmative, and the second in the negative, in the cases of Simmons v. Augustin, 3 Port. 90, and Martin v. McRee, 30 Ala. 116, wherein it was held that language similar to that given the deed in question created a fee tail, and the first grantee took a fee-simple estate, under the statute of 1812. The words considered in the Simmons Case, supra, may not be identical with those applied by this court in the former opinion to this deed; but the words used in the instrument considered in the Martin Case, supra, are identical with the meaning given the words employed in the present deed. There is, therefore, a direct conflict in the holding that this deed did not create a fee tail with the Cases of Simmons and Martin, supra, and we must, therefore, determine the soundness of the rulings, respectively, and adopt that view which may seem sound and correct.

It will be observed that the only authorities cited in the case of Findley v. Hill, 133 Ala. 229, 32 So. 497, in support of the holding that the deed in question did not create an estate tail, is Fearne on Rem. 177, and the case of Roberts v. Ogbourne, 37 Ala. 174. Fearne on Remainders does not support the holding. It may be that the Ogbourne Case, supra, does, in a measure, support the conclusion in the Findley Case, supra. This case, however does not strike us as being sound, or as a well-considered case. Moreover, Stone, J., dissented from same. This case seems to proceed upon the theory that the testator gave directly to the heirs of Sarah Bledsoe, reserving to her simply a use during her lifetime, that the heirs took the entire property, and not the remainder after a life estate, and that the reservation to Mrs. Bledsoe was not of the thing itself, but of the use and benefit for a specified time, and that these facts differentiated the case from those which fell within the rule in Shelley's Case. Whether this was a proper construction as to the meaning of the devise to Mrs. Bledsoe, or not, we need not determine; for, if it was, it differentiated it from the present deed, which plainly gives Murchison Findley a life estate, rather than a mere reservation to use the same. On the other hand, we find that the case of Martin v. McRee, supra, is in line with Lenoir v. Rainey, 15 Ala. 667, and Hamner v. Smith, 22 Ala. 433. In the case of Bibb v. Bibb, 79 Ala. 442, the court reaffirmed the soundness of the Martin Case, supra, and declared it the proper construction of the statute of 1812 above quoted, notwithstanding it did not follow same in said case, as the parties had purchased after a former construction of the identical instrument in the case of Edwards v. Bibb, 43 Ala. 666, and Edwards v. Bibb, 54 Ala. 475. This Martin Case was again cited approvingly in the case of McQueen v. Logan, 80 Ala. 307. We do not find that the case of Roberts v. Ogbourne has ever been cited, except in the Findley v. Hill Case, supra, and in the case of McQueen v. Logan, supra, and in which said last case it was cited in support of the application of the rule in Shelley's Case as to conveyances made prior to the adoption of the Code of 1852. We are therefore constrained to hold that the deed in question created a fee tail, under the well-considered authorities construing the law as it existed when the same was executed, and Murchison Findley acquired a fee-simple title to the property conveyed. The case of Findley v. Hill, 133 Ala. 229, 32 So. 497, is...