Edins v. Murphree

• Decision Date: 17 January 1905
• Citation: 142 Ala. 617,38 So. 639
• Parties: EDINS ET AL. v. MURPHREE.
• Court: Alabama Supreme Court

38 So. 639

142 Ala. 617

EDINS ET AL. v. MURPHREE.

Supreme Court of Alabama

January 17, 1905

Appeal from Chancery Court, Coffee County; W. L. Parks, Chancellor.

Bill for partition by Richard Edins and others against Joel D Murphree. From a judgment dismissing the bill for want of equity, complainants appeal. Affirmed.

The bill alleged that complainants are the children of one Nancy Edins, grantee in a certain deed by which the said parcel of land sought to be divided was conveyed to her by G. B Flowers, grandparent of complainants, the provisions of which said deed are set out in the opinion of the court. And it is further alleged in said bill that it was the intention of the said Flowers to convey by said conveyance a joint ownership in said parcel of land to each of the complainants and Nancy Edins, the complainants being at that time the bodily heirs of Nancy Edins; and that the said Nancy Edins and her husband, afterwards being indebted to respondent, attempted by a deed in proper form to convey the whole of said parcel of land to respondent, and that, as a matter of fact, said Nancy Edins only owned one-fifth interest in said land. The respondent demurred to said bill on the ground that it showed on its face that the complainants had no interest in said land, and that the deed set out in the bill governed in arriving at the grantor's intentions, and not the allegation of intention (without more) in the bill.

J. F Sanders and Sollie & Kirkland, for appellants.

Foster Samford & Carroll, for appellee.

McCLELLAN C.J.

The question in this case is whether the children of Nancy Edins living at its date took as tenants in common with her under the following deed: "Know all men by these presents that we, G. B. Flowers and wife Elizer Flowers, for the love and affection that we have for our daughter Nancy Edins and her bodily heirs, do grant and convey unto the said Nancy Edins and her bodily heirs the following described lands, to wit: [description] to have and to hold to her own use and bodily heirs, and we, G. B. Flowers and wife Elizer Flowers, for ourselves, heirs or assigns, will warrant and defend the above named lands unto said Nancy Edins, her heirs and assigns, against the lawful claims of all other persons." If the words "bodily heirs" as employed in this conveyance are to be given their ordinary, legal significance, the estate is a fee simple in Nancy Edins; that is, at common law it would have been an estate tail in her which our statute converts into a fee simple. Those words are to be taken in that sense--to mean the issue of the body of Nancy Edins in all generations to...