Dickson v. Van Hoose

• Citation: 47 So. 718,157 Ala. 459
• Parties: DICKSON ET AL. v. VAN HOOSE ET AL. VAN HOOSE ET AL. v. DICKSON ET AL.
• Decision Date: 26 November 1908
• Court: Supreme Court of Alabama

47 So. 718

157 Ala. 459

DICKSON ET AL. v. VAN HOOSE ET AL.

VAN HOOSE ET AL. v. DICKSON ET AL.

Supreme Court of Alabama

November 26, 1908

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Action by Annie E. Dickson and others against G. W. Van Hoose and others. From a judgment for plaintiffs for a one-third interest in the property and defendants for two-thirds interest, both plaintiffs and defendants appeal. Reversed and rendered on defendants' cross-appeal.

The record presents no disputed evidence of fact. The plaintiffs sue as heirs at law of Barton F. Dickson, who died May 10 1904. The defendants claim through a deed executed on December 4, 1883, by B. F. Dickson to one George A. Searcy and from him by mesne conveyances to the present defendants. They also claim through a deed from Cadet Fiquet and W. F Fiquet, and by limitation and prescription. The history of the property is briefly as follows: Charles J. Fiquet, the former owner of the property, died in 1867, and left the property by will to his wife, Mary A., his son, Cadet D., and his daughter, Kate E., Fiquet, jointly. In June, 1881, Kate E. Fiquet married B. F. Dickson, who previous to his marriage to Kate E. renounced all his marital rights in her property. Subsequent to the marriage, and before her death, she, by proper deed of conveyance, conveyed this property to her husband, B. F. Dickson, and she died in 1882. Dickson at once took possession of the property, and afterwards conveyed it to George A. Searcy, from whom by mesne conveyances it reached Van Hoose and Perkins. In 1888, upon a written declaration by Mary A. Fiquet that a partition of the property had been made giving to Kate E. Fiquet these stores but that no conveyance had been made by herself and Cadet D. Fiquet to Kate E., Van Hoose purchased from Cadet D. and W. F. Fiquet all their interest in the property present and prospective, and received a warranty deed therefor. The present plaintiffs are the children of B. F. Dickson by his second marriage, and they base their claim upon the introductory recitals of the deed from Dickson to Searcy, which they claim show a reservation in Dickson, their father, of a reversionary interest in the property. After the institution of another suit in equity against Mrs. Whittaker to quiet her claim, an instrument was filed for record purporting to be a conveyance from Mary A. and Cadet Fiquet to Kate E. Fiquet, and dated January 1, 1881. It does not appear from the record where this deed came from nor by whom it was filed. It further appears that since March, 1883, defendants and their privies have been in continuous, adverse possession under claim of feesimple ownership. The trial court held that a one-third interest in the property was in Van Hoose and Perkins by virtue of their purchase from Cadet and W. F. Fiquet, and that there was a reservation in the deed from Dickson to Searcy to the heirs of Dickson after the termination of the life estate. The holding of a one-third interest in defendants and cross-appellants seems to have been upon the theory that Van Hoose purchased Cadet D. Fiquet's one-third interest in fee without notice of the unrecorded deed from him to his sister Kate E., and that by the recital of the deed to Searcy, plaintiffs' ancestor, Dickson caused Van Hoose to purchase from Cadet D. and W. F. Fiquet their ostensible interest as heirs of their deceased sister.

Henry Fitts, for appellants.

Ormond Somerville, J. J. Mayfield, and Daniel Collier, for appellees.

DENSON J.

Charles J. Fiquet died in Tuscaloosa county in 1867, leaving a last will and testament. He left surviving him a widow and several children. He devised the property here in dispute to his widow, Mary Ann, his son, Cadet D., and his daughter, Kate E., Fiquet. On January 1, 1881, according to plaintiffs' contention, Mary Ann and Cadet D. conveyed their interests in the property to Katie E. In June, 1881, Katie E. Fiquet intermarried with Barton F. Dickson; he having at a time shortly prior to the marriage, but in contemplation of it, renounced his marital rights in the property of the said Katie E. It is shown by the evidence that subsequent to the marriage Katie E. executed to her husband, the said Barton F. Dickson, an absolute conveyance of all of her property, and that she died without issue in January, 1882. Dickson took possession of the property after his wife's death, and on the 4th of December, 1883, sold and conveyed the property involved in this litigation to George A. Searcy, whence, by mesne conveyances, defendants claim to have title to the property. Barton F. Dickson married a second time. He died May 10, 1904, leaving surviving him three children by the second wife, who are the plaintiffs in this case, and who claim title to the property sued for as the only heirs at law of their father.

Under the proof contained in the record, whether or not they have shown title to the property depends upon the construction which should be placed upon the deed executed by Dickson to Searcy; the precise point being whether that deed conveys only an estate terminable on the death of the grantor or an estate in fee. That the deed may be the more easily referred to, and its contents better kept in mind, we transcribe it here: "Whereas the late Mrs. Katie E. Dickson, now deceased, was seised and possessed in her lifetime in fee of the real property hereinafter described--the same then being a part of the corpus of her statutory separate estate under the laws of Alabama. And whereas Barton F. Dickson, who was the husband of the said Mrs. Kate E. Dickson, dec'd, has survived her; and under and by virtue of the laws of said state became entitled to the use and occupation of said real property for and during the term of his natural life; and (since the death of said Mrs. Katie E. Dickson), he has been in the quiet and undisturbed possession and enjoyment of the same. And whereas said Barton F. Dickson has agreed to sell to said Geo. A. Searcy his life estate and interest in the real property aforesaid. This indenture made and entered into between Barton F. Dickson, party of the first part, and George A. Searcy, party of the second part, witnesseth: That said party of the first part, for and in consideration of the sum of two thousand five hundred dollars, lawful money of the United States of America, to him in hand paid by the party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained and sold, and by these presents doth grant, bargain and sell unto said party of the second part and to his heirs and assigns forever, all of the right, title, interest, estate, possession, claim and demand whatsoever, as well in law as in equity, (of, in and to the following described real property) of said party of the first part, and of every part and parcel thereof, with the appurtenances, that is to say: That portion [here follows the description of the property conveyed, it being all the property in dispute, which description we omit]. To have and to hold all and singular the life estate and interest which said party of the first part hath in the above mentioned and described premises together with the appurtenances, and no more, unto said party of the second part, his heirs and assigns forever. In witness whereof said party of the first part hereunto sets his hand and seal this 4th day of December, 1883."

It is true the real inquiry in the construction of a deed is to establish the intention of the parties, especially that of the grantor; but a corollary to this rule is that the intention must, if possible, be gathered from the language used in the instrument submitted for construction, and that, when it can in this way be ascertained, arbitrary rules are not to be resorted to. If, however, two conflicting intentions are expressed, there is no alternative but to construe the deed by these rules even though they may be denominated arbitrary. 17 Am. & Eng. Ency. Law, 2; 13 Cyc. (11) 604; 2 Dev. on Deeds (1st Ed.) §§ 836, 837; Campbell v. Gilbert, 57 Ala. 569; Campbell v. Noble, 110 Ala. 394, 19 So. 28; May v. Ritchie, 65 Ala. 602; Green Bay, etc., Co. v. Hewitt, 55 Wis. 96, 12 N.W. 382, 42 Am. Rep. 701; Maker v. Lazell, 83 Me. 562, 22 A. 474, 23 Am. St. Rep. 795, 797; Wilkins v. Norman, 130 N.C. 40, 51 S.E. 797, 111 Am. St. Rep. 767; Robinson v. Payne, 58 Miss. 690. Looking alone to the granting clause in the deed in judgment, we think variant judicial opinions in respect to its meaning an impossibility. Indeed, it will not admit of, nor does it call for, construction. It is couched in language fully and accurately expressive of an intention to convey to the grantee every interest the grantor owned in the lands conveyed, and to vest in the grantee a feesimple estate.

But the plaintiffs insist that the part of the deed which precedes the granting clause...