First National Bank of Ft. Smith v. Graham

• Decision Date: 07 February 1938
• Docket Number: 4-4937
• Citation: 113 S.W.2d 497,195 Ark. 586
• Parties: FIRST NATIONAL BANK OF FT. SMITH v. GRAHAM
• Court: Arkansas Supreme Court

113 S.W.2d 497

195 Ark. 586

FIRST NATIONAL BANK OF FT. SMITH v. GRAHAM

4-4937

Supreme Court of Arkansas

February 7, 1938

Appeal from Sebastian Circuit Court, Greenwood District; J. Sam Wood, Judge; reversed.

Judgment reversed and case remanded.

Daily & Woods, for appellant.

Hardin & Barton, for appellee.

OPINION

BAKER, J.

This suit in ejectment was brought by the appellee to recover a tract of land which is a part of the north half of the southwest quarter and northwest quarter of the southeast quarter of section 24, township 8 north, range 30 west. It is unnecessary here to describe more definitely. Appellee's complaint alleges that both the plaintiff and defendant claim title from T. H. Powers as the common source. Powers and his wife had executed a deed to their daughter Tadie Graham. It was set forth in full in the complaint. Those essential parts in controversy are copied.

"We T. H. Powers and Mattie Powers, in consideration of the sum of one dollar, and the love and affection we bear our daughter, Tadie Graham, to us in hand paid by Tadie Graham, the receipt of which is hereby acknowledged, grant, bargain, sell and convey to the said Tadie Graham for and during her natural life and at her death to descend and go to her children and heirs-at-law in fee simple, and unto her heirs and assigns forever, the following described real estate, (here follows description of the real estate set forth above).

"To have and to hold unto the said Tadie Graham, her heirs and assigns as aforesaid forever. (Then follows warranty of title and against incumbrances in common form, and conveyance and relinquishment of dower and homestead by Mattie Powers in common form.) Preceding the signatures, and attached to the deed is a rider, as follows:

"My health having become impaired and owning considerable real estate and being unable to look after it, I have this day made deeds to my son, H. J. Powers, and my four daughters, Verglon Brown, Lydia Bugg, Tadie Graham and Ethel Stem, for certain real estate described in said deeds, and the land deed deeded to each being equal in value, and which said deeds to said lands are to be considered by each child as an advancement to the child named in said deed, it being hereby expressly agreed and understood, and said deeds are so accepted by each child, that my two minor sons, Arla Powers, aged 17, and Moultie Powers, aged 15, are entitled to and shall receive from my estate, either at their maturity, or at my death an amount of land equal in value to that this day deeded to said other five children, already valued and set apart at this date for two minors, and the said H. J. Powers, Verglon Brown, Lydia Bugg, Tadie Graham and Ethel Stem each separately and severally agree as a part consideration for the deed so received by each, that they will each, for six years beginning January 1st, 1924, pay to me one-half rent each year for all and every kind of crop raised on said land so deeded to each, said rent to be the customary rent paid for such crop as shall be raised on said land, and one-half of the rent received by any or all of them from houses or dwellings which are rented by them which are located on any of said lands so deeded."

Plaintiff further alleged that Tadie Graham had executed a mortgage upon this property to secure an indebtedness, and the effect of that pleading was that the mortgage had been regularly foreclosed and the property had been purchased at a foreclosure sale by the First National Bank of Fort Smith and that it was in possession. The plaintiff asserted no irregularity or illegality in the matter of foreclosure. A demurrer to the complaint was overruled. Defendant declined to plead further and judgment was rendered accordingly.

The only question presented in the trial court, and here upon appeal, is the effect of the deed executed by Powers and his wife to his daughter, Tadie Graham. A construction of that deed settles the whole controversy.

The appellant insists that the rule in Shelley's case is applicable. The appellee is equally insistent that under the rules of construction, as they relate to conveyancing, full effect must be given to the intention of the grantor as expressed in the whole instrument and that method of construction results, as it did in the lower court, in a declaration or construction favoring the appellee and a consequent affirmance upon this appeal. Following appellee's contention, as far as we are able, we do not arrive at the same conclusion in all respects counsel of appellee insist upon.

It is true that the deed is written "convey to said Tadie Graham for and during her natural life." Of course, if that were all, there would be no question and appellant would not even insist that the grantee took more than her life estate in the property, but the grantor added in the same sentence and after the word "life" the words, "and at her death to descend and go to her children and heirs-at-law in fee simple, and unto her heirs and assigns forever." Now if we attempt to follow the theory of the appellee what must necessarily be the conclusion? Do the children and heirs- at-law of Tadie Graham take any interest of the property by reason of this conveyance? That does not seem to be the intention of the grantor. He says "to descend and go to her children," so it must appear that this idea was that her children would take under the law of descent, that is, whatever interest they might have in the land, ultimately, would be by inheritance.

It, therefore, seems to us that under the very theory insisted upon, the children of Tadie Graham obtained or held no interest by reason of the deed and the grantor must have intended an estate of inheritance because he attempted to provide for one, and that intention may help to determine the legal effect of the deed. What we are trying to say is that his intention as to the conveyance added nothing to the force or effect of the law, but that intention as expressed may make applicable well known principles.

It is argued that the words "to descend and go to her children and heirs-at-law in fee simple" were words written into a blank of a printed form and that the succeeding words "heirs and assigns forever" were parts of the printed form and, therefore, we should give, in the construction of this instrument, full force and effect to that part written in...