Hacker v. Carlisle

CourtSupreme Court of Alabama
Citation388 So.2d 947
PartiesByrda Zell C. HACKER et al. v. Johnny C. CARLISLE et al. 79-327.
Decision Date26 September 1980

Page 947

388 So.2d 947
Byrda Zell C. HACKER et al.
Johnny C. CARLISLE et al.
Supreme Court of Alabama.
Sept. 26, 1980.

Page 949

Zack Rogers, Jr., Butler, John E. Adams of Adams & Adams, Grove Hill, for appellants.

William L. Utsey, Butler, for appellees.


This is a suit for declaratory judgment seeking interpretation and declaration of the legal effect of a deed executed in 1914 by Jasper Carlisle, et ux., to his son John Carlisle. Plaintiffs, the heirs of John Carlisle, also seek to quiet title in themselves as to certain mineral interests in three parcels of land-two of which were covered by the deed in issue. The trial court found the deed conveyed merely a life estate to John Carlisle with remainder to his heirs based on the following handwritten clause, viz.: "It is understood that the above party of the second part is not to sell above described lands but it is to go to his heirs." Defendants, successors in interest to a 1943 conveyance by John Carlisle of mineral interests in the three parcels, appeal the trial court's finding that John Carlisle did not have a fee simple interest to convey. We reverse.

In 1914, Jasper Carlisle conveyed Parcels 1 and 2 to his son, John, by warranty deed. A printed form deed was used with handwritten additions. That deed is set out below with the applicable handwritten portion designated by italics.




BE IT KNOWN BY THESE PRESENTS, THAT WE J. C. Carlisle and M. J. Carlisle of the first part, in consideration of the sum of One Dollars, to us in hand paid by John Carlisle party of the second part, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell, and convey unto the said party of the second part the following described property, to-wit:

NW 1/4 of SE 1/4 Sec. 29 T 11 R 3 in Choctaw Co., Alabama containing 40 acres Also 17 3/4 acres in W 1/2 of SE 1/4 Sec. 28, T11, R3 Choctaw Co. Alabama.

It is understood that the above party of the second part is not to sell above described lands but it is to go to his heirs.

We reserve all timber on above described lands.

TO HAVE AND TO HOLD the same unto the said party of the second part, and to his heirs and assigns, forever. And the said parties of the first part, for them and their heirs, covenant with the said party of the second part that we are lawfully seized in fee-simple of said premises; that they are free from all incumbrances; that we have a good right to sell and convey the same as aforesaid, and that we will forever warrant and defend the same unto the said party of the second part, and his heirs and assigns, against the lawful claims and demands of all persons.

In witness whereof the said parties of the first part have hereunto set their hands and seals this 20th day of Feby (sic) in the year of our Lord 1914.

his mark

J. C. Carlisle (Seal.)

Page 950

On the same date in 1914, Jasper conveyed Parcel 3 to another son, Ira Carlisle, by a deed which is identical in all significant respects to the deed to John, including the handwritten clause in question. Subsequently Ira conveyed Parcel 3 to his brother, John, by a deed which is sufficient to have conveyed a full fee simple title. Neither Ira nor his heirs are parties to this proceeding.

In 1943, John conveyed to R. E. Anderson an undivided one-half mineral interest in the three parcels. This deed is a warranty deed sufficient to convey full fee simple title to such mineral interest. Appellants have succeeded to the mineral title of R. E. Anderson, now deceased.

John Carlisle died, intestate, on March 30, 1960, survived by his widow and the appellees, his heirs. After the death of John and prior to the filing of this suit, proceeds from the production of oil on Parcel 1 were realized. The stakeholders, some of whom are lessees of the appellants and some of whom are lessees of the appellees, have deposited the proceeds with the trial court pursuant to ARCP 22.

Appellees claim Parcels 1 and 2 as remaindermen under the 1914 deed to John. They claim Parcel 3 under our statute of descent as the heirs of John. While the trial court quieted title in the appellees as to Parcels 1 and 2, it denied their claim to Parcel 3, reasoning that Ira did not have a fee simple interest to convey to John which could be passed down by intestacy.

At the outset, we note that the usual presumptions of correctness in the trial court's findings in cases tried ore tenus are not applicable here. This case was tried without a jury on stipulations and briefs of the parties and primarily documentary evidence. No testimony of any witness was admitted into evidence on any material matter. In such a situation, the appellate court sits in judgment on the evidence. McCullock v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974).

A starting point for the construction of the deed in question is Code 1975, § 35-4-2, viz.: "Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended." (emphasis added)

Under this statute, the presumption is, and all doubts are resolved in favor of, a fee simple estate. Johnson v. Harrison, 272 Ala. 210, 130 So.2d 35 (1961). The intention to create a lesser estate must clearly appear, for the courts will not construe the grantor's words as conveying a lesser estate if a different meaning can be fairly given them. Johnson.

In the deed in question, all the clauses except one are consistent with a conveyance of a fee simple estate. Although the granting clause contains no words of inheritance, the court may look to the language of the habendum and warranty clauses to find a conveyance of a fee simple estate. See, e. g., Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127 (1956). Here, both the habendum and warranty clauses contain the traditional words of inheritance connoting a fee simple estate, i. e., "his heirs and assigns." However, appellees contend that the handwritten clause in question clearly diminishes the interest conveyed to a life estate with remainder. We disagree.

We recognize appellees' point that handwritten portions of a deed take precedence over printed language when in conflict. Porter v. Henderson, 203 Ala. 312, 82 So. 668 (1919). However, the failure of the handwritten clause here to clearly or even minimally designate a life estate renders it ineffective.

Appellees cite three Alabama cases they consider...

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