Graves v. Wheeler

• Citation: 61 So. 341,180 Ala. 412
• Parties: GRAVES v. WHEELER.
• Decision Date: 13 February 1913
• Court: Alabama Supreme Court

61 So. 341

180 Ala. 412

GRAVES v. WHEELER.

Supreme Court of Alabama

February 13, 1913

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Ejectment by H.T. Graves against A. Wheeler. Judgment for defendant and plaintiff appeals. Reversed and remanded.

The plaintiff claims as the only heir of his father and mother W.D. Graves and Rebecca Graves. The father died about 27 or 28 years prior to April, 1912, and the mother died May 12 1909. The following is the deed made by William D. Graves to his wife, Rebecca C. Graves, dated April 8, 1873: "For and in consideration of the mutual love and affection, I have for my wife, Rebecca C. Graves, and for the further consideration of $5.00, I do hereby, grant, bargain, sell confirm and convey unto my said wife, Rebecca C. Graves, the following property. (Here follows the description of the property sued for, together with the lot of other property both real and personal.) It is also expressly understood that at the death of my said wife, all of the aforementioned property shall be divided equally between my lawful children: I also reserve to myself the absolute right to manage and control the aforesaid property so long as I may live without the liability to account to my said wife or to her administrators or assigns for the same. I hereby appoint James M. Graves as trustee for my said wife." Plaintiff also introduced a deed signed by W.D. Graves, R.E. Graves, and J.M. Graves, as trustees, conveying to Jesse H. Dickson, conveying the land sued for, of date October 27, 1877. It was agreed that Dickson mortgage the property in 1892, and that the mortgage was foreclosed in 1897, and that Wheeler, the defendant here, purchased at said mortgage sale, and is now in possession. The deed from Graves to his wife was recorded in the probate office on the 12th day of May, 1873. The deed to Dickson was recorded February 24, 1887.

W.M. Blakey and Hill, Hill, Whiting & Sterne, all of Montgomery, for appellant.

Hugh Nelson, of Montgomery, for appellee.

ANDERSON J.

The instrument executed by Graves to his wife and children is unquestionably a deed and not a testamentary document. There is no effort to postpone the operation of same until the death of the grantor, and the interest conveyed is not posthumous. Mays v. Burleson, 61 So. 75; Elmore v. Mustin, 28 Ala. 309; Sharp v. Hall, 86 Ala. 110, 5 So. 497, 11 Am.St.Rep. 28; Trawick v. Davis, 85 Ala. 342, 5 So. 83; Hall v. Burkham, 59 Ala. 349.

In the construction of a deed the object is to carry out the intention of the parties, especially that of the grantor; but 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 sought. If, on the other hand, two conflicting intentions are expressed, there is no alternative but to construe the deed by these rules, even though they may be denominated arbitrary. Dickson v. Van Hoose, 157 Ala. 465, 47 So. 718,

19 L.R.A. (N.S.) 719.

One of the rules of construction is that the granting clause in a deed prevails over introductory statements in conflict therewith, and over the habendum also, if that clause is contradictory of, or repugnant to, said granting clause. Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Webb v. Webb, 29 Ala. 588. Therefore, when the granting clause provides for a certain or specific estate, and the character or nature of said estate is changed or lessened by some interlocutory clause, or by the habendum, there would be a conflict or repugnancy, and the granting clause should prevail.

"Where an estate in fee simple is granted to a person, by proper and sufficient words, a clause in the deed which is in restraint of alienation is void and will be rejected." Hill...