Gaston v. Mitchell

• Decision Date: 08 December 1941
• Docket Number: 34725.
• Court: Mississippi Supreme Court
• Parties: GASTON et al. v. MITCHELL et al.

4 So.2d 892

192 Miss. 452

GASTON et al. v. MITCHELL et al.

No. 34725.

Supreme Court of Mississippi

December 8, 1941

J H. O'Neal, of Clarksdale, for appellants.

W W. Venable, of Clarksdale, for appellees.

ALEXANDER Justice.

Charles Gaston in 1905 executed and delivered to his wife, Selina Gaston, an instrument in the following language: "For and in consideration of One Dollar cash paid the receipt of which is hereby acknowledged, and for the further consideration of love and affection I hereby convey and warrant unto my wife, Selina Gaston, the following described property, to-wit: Southeast quarter of northwest quarter, section twenty-two, township twenty-eight, range three west, in Coahoma County, Mississippi. The above conveyance to take effect and be in force at the time of my death, I hereby retaining a lifetime interest in the above property, but should my above wife, Selina Gaston, die before I do, then this instrument shall be void." This instrument was acknowledged and filed for record. Shortly thereafter grantor died, and in 1934 Selina Gaston, who occupied the lands thereafter, executed a deed of trust in favor of J. B. Mitchell, purporting to convey to the trustee in trust, the entire estate described in the quoted instrument. In 1936 Selina Gaston died intestate, leaving nine children.

Appellants are the children of the grantor, and in their bill as amended they attack the validity of the debt secured by the trust deed, and particularly allege the inefficacy of the trust deed to convey a greater interest in the property than an undivided one-tenth interest. This contention involves an attack directly upon the alleged deed to Selina Gaston as being inoperative either as a deed or will and, invoking the theory that their father died intestate, they prayed for and obtained an injunction against the foreclosure by appellees of the deed of trust as a conveyance of the entire interest in the property. The Chancellor upon final hearing decreed that the instrument was a valid deed, and dissolved the injunction.

A construction of the instrument involves the effect of the following language therein; "The above conveyance to take effect and be in force at the time of my death."

We are no longer free to rationalize as to the effect of such a provision. It has repeatedly been held by this Court to be testamentary and inoperative to vest any interest in praesenti. Its plain language is not susceptible of a construction that only the delivery and enjoyment of the property is to be withheld, but in specific terms provides that the conveyance itself is to be effective as such, not from the date of its execution, but at grantor's death. Cunningham v. Davis, 62 Miss. 366; Simpson v. McGee, 112 Miss. 344, 73 So. 55, 11 A.L.R. 4; Thomas v. Byrd, 112 Miss. 692, 73 So. 725; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A.L.R. 5; Martin v. Graham, 114 Miss. 653, 75 So. 447; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Knight v. Knight, 133 Miss. 74, 97 So. 481; Tapley v. McManus, 175 Miss. 849, 168 So. 51; Ates v. Ates, 189 Miss. 226, 196 So. 243. The case of Rogers v. Rogers, Miss., 43 So. 434, not reported [in State Report], appears out of harmony with the foregoing view, and was apparently overlooked until its citation in Tapley v. McManus, supra. We must hold, however, that it is ineffective to stem the tide of the foregoing decisions, all but one of which were rendered since the Rogers case.

Nor may appellees invoke the language of the instrument next following the quoted clause to vary its meaning. Such language is at least equally consistent with a failure to vest a present interest. But appellees urge well known theories of construction based upon an assumption that the grantor intended to vest a present irrevocable interest in his wife. Such construction aids are available only to interpret ambiguity. We...