Deramus v. Deramus

• Decision Date: 22 January 1920
• Docket Number: 3 Div. 421
• Citation: Deramus v. Deramus, 204 Ala. 144, 85 So. 397 (Ala. 1920)
• Parties: DERAMUS et al. v. DERAMUS et al.
• Court: Alabama Supreme Court

85 So. 397

204 Ala. 144

DERAMUS et al. v. DERAMUS et al.

3 Div. 421

Supreme Court of Alabama

January 22, 1920

Rehearing Denied Feb. 18, 1920

Appeal from Circuit Court Autauga County; Leon McCord, Judge.

Bill by E.E. Deramus and another against W.M. Deramus and others for the sale of lands and personal property for division. From decree granting relief, respondents appeal. Affirmed.

McClellan J., dissenting.

Ballard & McGaugh of Montgomery, and Charles W. Sanders, of Ensley for appellants.

Guy Rice and Gipson & Booth, all of Prattville, for appellees.

SAYRE J.

The parties complainant and defendant to this bill for partition are the children of R.S. and Mary Alice Deramus. Prior to 1969, R.S. Deramus owned and occupied the land in controversy, a tract of 240 acres. In that year R.S. conveyed the land "unto her," his wife Mary Alice, with habendum as follows, "To have and to hold the same to her and her heirs and assigns forever," after which the deed proceeded:

"But it hereby provided that the said property both real and personal shall never by contract, mortgage or otherwise be subject to my debts or the debts of my said wife and it is further provided that at the death of my said wife the said property shall descend to and become the property of the heirs of my body and her body now born or hereafter born during our wedlock."

In December, 1911, Mary Alice, being joined therein by R.S., executed a deed, purporting to convey the land, to the defendant W.M. Deramus in fee simple. Afterwards Mary Alice died, and then, in December, 1918, this bill was filed. The chancellor held that the deed from R.S. to Mary Alice vested in the latter a life estate with remainder to their children, and, upon the basis of this holding, decreed relief according to the prayer of the bill.

It is not to be denied that the grant "unto her," the wife of the grantor, "to have and to hold the same to her and her heirs and assigns forever," in the absence of limitation, would have created in her an estate in fee simple. But the last proviso was the equivalent of a limitation over operating as the grant of an estate in remainder after the death of the wife. A person not named as a grantee may nevertheless so take where the conveyance discloses a clear intention to that effect. 1 Devlin on Deeds (3d. Ed.) § 219. It is true that one rule for the construction of deeds requires that, to quote the language of Petty v. Boothe, 19 Ala. 633, 640, "if there be two clauses which are utterly inconsistent with each other, and which cannot be reconciled or made to stand together, the last shall give way to the first, the maxim being, 'the first clause in a deed, and the last in a will shall prevail.' " But this rule should never be resorted to until all efforts to reconcile the conflicting parts have failed. Pett v. Boothe, ubi supra. The two clauses presented by this deed are not utterly, if indeed they be at all, inconsistent. It is clear upon the express terms of the last proviso that the grantor intended to create an estate in remainder in the children of himself and wife, and yet he uses the word "heirs" which he had used in the habendum following the grant to his wife. The term used in the first place is broader than that used in the last, but there is no inconsistency. In the presence of the intention, thus clearly expressed, to create an estate in remainder, the court can have no higher duty than to make it effectual. 2 Devlin, §§ 836, 836a. Many cases on the subject are collated in Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A. (N.S.) 719, and Porter v. Henderson, 82 So. 668.

Appellants contend that the deed from R.S. to Mary Alice was void as to the estate in remainder for the reason that the land constituted the homestead of the couple, and the wife did not join in the execution of the deed nor acknowledge the same separately as provided by statute in the case of an alienation of the homestead. That the deed, in so far as it undertook to vest title in the wife for her life, operated in accordance with the intention of the grantor, is settled in the law of this state. Turner v. Bernheimer, 95 Ala. 241, 10 So. 750, 36 Am.St.Rep. 207; Wallace v. Feibelman, 179 Ala. 589, 60 So. 290; Tatum v. Tatum, 191 Ala. 45, 67 So. 977. But a majority of the court holds, in agreement with the contention of appellants, that, in so far as the deed purported to affect the estate in remainder in the homestead, it was void. That interest, therefore, passed by the deed of December, 1911. But the tract of land in suit, the tract described in the two several deeds to which reference has been made, exceeded the homestead limit by eighty acres. Whether a homestead of 160 acres would exceed in value the constitutional limit of $2,000 does not appear. But the life estate of $2,000 does not appear. But the life estate limited to children by the deed of 1909 was not wholly void by reason of the territorial excess. The deed carried the legal little, leaving in the grantor, and in his grantee W.M. Deramus, a right by appropriate proceedings to have the homestead set apart to him. McGuire v. Van Pelt, 55 Ala. 344; Snedecor v. Freeman, 71 Ala. 140; Goodloe v. Dean, 81 Ala. 481, 8 So. 197. The sale for partition must therefore be made subject to that right.

Further, it is suggested the deed to Mary Alice was never delivered. The grantor has testified that it was never "turned over" to the grantee. He testified, however, that he made the deed to her and had it recorded. Filing a conveyance of real property in the probate office for record, when duly signed, attested, and acknowledged, constitutes a sufficient delivery, completing the execution of the instrument. Elston v. Comer, 108 Ala. 76, 19 So. 324; Gulf Red Cedar Lumber Co. v. O'Neal, 131 Ala. 117, 30 So. 466, 90 Am.St.Rep. 22, and cases cited.

The decree is correct and must be affirmed.

Affirmed.

All the Justices concur, except McCLELLAN, J., who dissents.

McCLELLAN J. (dissenting).

The primary,

fundamental factor in the determination of this cause arises out of the nature and, in any event, the proper construction of the instrument to be quoted in full. The majority opinion reproduces only a part of the instrument. This instrument bears date January 8, 1909, and was alone signed and acknowledged by R.S. Deramus, the husband of the Mary Alice Deramus named therein. That a husband may, without the joinder of the wife in the execution of the instrument, convey to the wife the legal title to land (except as restrained by the laws governing the alienation or incumbrance of the homestead), has been often declared in this jurisdiction. Turner v. Bernheimer, 95 Ala. 241, 244, 10 So. 750, 36 Am.St.Rep. 207; Wallace v. Feibelman, 179 Ala. 589, 60 So. 290.

The body of the instrument entire reads:

"Know all men by these presents: That, whereas, I, R.S. Deramus, of the county and state aforesaid, have heretofore used and expended for my own individual use and benefit the sum (principal and interest) of two thousand dollars in lawful money of the United States, which said money the individual property and separate estate of my wife, Mary Alice Deramus; now, therefore, to secure her in the payment of the sum I have bargained, sold and conveyed unto her and by these presents do bargain sell and convey unto her all of my right title and interest, either at law, or in equity in and to the following named and described property, viz.: All the personal property of every kind and description which I now own, and also the following described real estate situated in the county and state aforesaid, viz.: The SW 1/4 of the NE 1/4 and the N.W. 1/4 of the SW 1/4. W 1/4 of the SW 1/4 in section 1, township 18, range 13; and the E 1/2 of the NE 1/4 in Sec. 13, township 18, range 13, and the N.W. 1/4 except 14 acres in the S.E. corner. To have and to hold the same to her and her heirs and assigns forever. But it is hereby provided that the said property both real and personal, shall never by contract, mortgage or otherwise be subject to my debts or the debts of my said wife and it is further provided that at the death of my said wife the said property shall descend to and become the property of the heirs of my body and her body now borne, or hereafter borne during our wedlock.

"In witness whereof, I have hereunto signed my hand and affixed my seal, this the 8th day of January, 1909."

Obviously the instrument was written by an unskilled hand. As usual, its construction is to be undertaken in the light of that fact. May v. Ritchie, 65 Ala. 602.

1. It expressly appears upon the face of the instrument that it was only intended to be a "security for the payment of a debt." After designating with particularity the source and amount of R.S. Deramus' obligation to his wife--an obligation to pay that resulted from his recited "individual use" of the "individual property and separate estate of my [his] wife, Mary Alice Deramus"--the instrument provides: "Now, therefore to secure her in the payment of the sum," etc. The unauthorized appropriation of the money of another, as recited in this instrument, affords a sufficient consideration for a mortgage given to secure the payment of the liability so incurred. Griffin v. Chase, 36 Neb. 328, 54 N.W. 572. The conveyance of the property...