Findley v. Hill

• Decision Date: 22 May 1902
• Parties: FINDLEY ET AL. v. HILL ET AL. [1]
• Court: Alabama Supreme Court

32 So. 497

133 Ala. 229

FINDLEY ET AL. v. HILL ET AL. ^[1]

Supreme Court of Alabama

May 22, 1902

Appeal from circuit court, Tuscaloosa county; S. H. Spratt, Judge.

Ejectment by Murk Findley and others against Dave Hill and others. From a judgment in favor of the defendants, the plaintiffs appeal. Reversed.

H. B Foster and Foster & Oliver, for appellants.

Daniel Collier and H. A. Jones, for appellees.

TYSON J.

This is an action of ejectment to recover a certain tract of land described in the complaint, brought by the children of Murchison Findley, who died on the 16th day of March, 1900. The defendants claim title under warranty deeds executed by Murchison in 1836, under which they, and those through whom they hold, have been continuously in possession of the lands claiming them adversely. It appears that one Kenneth Findley being the owner of these lands, in 1826 conveyed them to his son John in trust for the use of his infant son Murchison then some 14 years old, for life, and at his death "for the use and benefit of the heirs of Murchison Findley at the time of his death, and their heirs and assigns forever. But in case he shall leave no heir or heirs living at the time of his death, then and in that case the same real and personal estate shall go to the heirs at law of the said Kenneth Findley living at the time of the death of the said Murchison Findley, and to be distributed according to the laws of the state of Alabama for distribution of intestate estates." John Findley, the trustee, lived near the lands until his death in 1894. Kenneth Findley, the grantor and father of John and Murchison, had other children living at the date of the deed to John. The oldest child of Murchison was 48 years of age at the commencement of the suit. On the foregoing state of facts, the trial court, at the request of the defendants in writing, gave the general affirmative charge in their favor.

If the deed to John created a fee in Murchison, or if it created an estate tail in him, or if the statute of limitations operated to effect a bar against the estate limited to the plaintiffs, of course they have no right to recover, and the instruction to the jury was proper. If, however, the estate was limited to the children or issue of Murchison, the statute of limitations would not bar the rights of the plaintiffs, because the conveyance to John was a dry use, which under the statute of uses passed the legal title to Murchison for life, in all respects as if the deed had been made without the intervention of a trustee. You v. Flinn, 34 Ala. 409; Gindrat v. Railroad Co., 96 Ala. 162, 11 So. 372, 19 L. R. A. 839; Webb v. Crawford, 77 Ala. 440. In such case the remainders over to the unborn children of Murchison, and, in default of such living at his death, to the heirs of the grantor living at the death of the life tenant, whether vested or contingent, would await the termination of the life estate, unaffected by the conveyance and warranty of Murchison; the remainder-men being without right or power to disturb the estate created by the deed of the life tenant. Tied. Real Prop. § 481; Pope v. Pickett, 65 Ala. 491; Pickett v. Pope, 74 Ala. 122; Bass v. Bass, 88 Ala. 408, 7 So. 243; Allen v. De Groodt (Mo. Sup.) 11 S.W. 240, 14 Am. St. Rep. 626, and note on page 635; McCorry v. King's Heirs, 39 Am. Dec. 165. So, then, the only question in this case is, what was the effect of the limitation over upon the death of Murchison? In determining the intention of the grantor, we may look not only to the words used, but to the situation and circumstances of the parties, the context of the instrument, and the fact, if it exists, that it was written by a person unacquainted with the use of legal technical words. In this case we have a father, with a number of living children, making provision for his minor son, and, to that end, giving him an estate expressly for life, with remainder for the use of his "heirs at the time of his death, and their heirs and assigns forever," and, in default of "heir or heirs living at the time of his death," over to the heirs of the grantor living at the death of the life tenant, and to be then distributed according to the law for the distribution of intestate estates. Now, looking first at the second limitation, there can be no doubt that by it the estate would vest in the persons answering to the description of "heirs" of Kenneth Findley, the grantor, living at the death of Murchison, the life tenant. Roberts v. Ogbourne, 37 Ala. 174. These persons, however, would be also the heirs of Murchison if he had died without descendants. To hold, then, that the first limitation, upon the death of Murchison, is to the heirs general of the life tenant, would make the second limitation over to the same persons as living. It is impossible to suppose that any grantor would intend such a result. It is certain, then, that the first limitation to the heir or heirs of Murchison living at his death was not, and could not have been, intended for the same persons as the second limitation. This being true, the only other meaning open for our adoption is that the first limitation was to the children, issue, or descendants of Murchison living at his death. Adopting this construction, the deed is congruous in all its parts.

While it is true that courts will...