Hardee v. Hardee

• Decision Date: 13 December 1956
• Docket Number: 3 Div. 673
• Citation: 265 Ala. 669,93 So.2d 127
• Parties: J. S. HARDEE et al. v. J. W. HARDEE.
• Court: Alabama Supreme Court

Page 127

93 So.2d 127

265 Ala. 669

J. S. HARDEE et al. v. J. W. HARDEE.

3 Div. 673.

Supreme Court of Alabama.

Dec. 13, 1956.

Rehearing Denied March 14, 1957.

N. S. Hare, Monroeville, for appellants.

B. E. Jones, Evergreen, for appellee.

PER CURIAM.

The original bill was filed by J. S. Hardee and forty other persons against J. W. Hardee. Two of the original complainants were stricken and several other persons were added as parties complainant by amendments. The bill as amended alleges that the complainants and the respondent are the joint owners of approximately eighty acres of land situate in Conecuh County, to which we will sometimes refer hereafter as the suit property, which cannot be equitably divided in kind and prayed that it be sold for division of the proceeds among the alleged joint owners according to their respective interests. The bill as amended does not aver how the alleged joint owners acquired their interests but such averments are not necessary. Vest v. Wilson, 223 Ala. 414, 136 So. 730; Brewer v. Brewer, 250 Ala. 222, 34 So.2d 13; Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779.

The respondent, J. W. Hardee, filed his answer wherein he denies that any of the complainants own any interest in the suit property and avers that he is the sole owner. The answer was made a cross bill and it is averred therein that the suit property was owned by N. Z. Hardee, an ancestor of all of the parties to the litigation, but that the respondent-cross complainant is now the owner of the property by virtue of a deed from his sister, Isabella Hardee (executed in 1948), who had obtained fee simple title to the suit property under a deed from her father, N. Z. Hardee, executed on April 6, 1923. The prayer of the cross bill was that the trial court enter a decree declaring that the respondent-cross complainant is the sole owner of the land in controversy and that the title to that land be quieted in him and that the complainants-cross respondents be enjoined from claiming any right, title or interest in the land.

The complainants-cross respondents did not challenge the cross bill by demurrer, but filed an answer wherein they deny that Isabella Hardee acquired fee simple title to the land in controversy under the deed of April 6, 1923, from her father, N. Z. Hardee, and further deny in general terms the validity of the 1948 deed from Isabella Hardee to J. W. Hardee.

After submission on testimony taken before commissioners, a final decree was rendered wherein the relief sought by complainants was denied and their bill dismissed and where it was decreed that the respondent-cross complainant was entitled to relief under his cross bill and that as against the complainants he is the sole owner of the lands in dispute. It was further decreed: '* * * that the title to the above described lands is vested in the said J. W. Hardee and that neither of the Complainants has any right, title or interest in, claim to, or incumbrance upon, said lands above described, or any part thereof.'

From that decree the complainants-cross respondents, to whom we will refer hereafter as the appellants, have appealed to this court. The respondent-cross complainant will sometimes be referred to by name and sometimes as the appellee.

At the very threshold of this case is the construction to be placed on the deed from N. Z. Hardee to Isabella Hardee executed as shown above on April 6, 1923, and recorded shortly thereafter. The appellee contends that Isabella obtained a fee simple title to the described lands subject to the use and enjoyment by the grantor during his lifetime, whereas the appellants insist that Isabella was conveyed only a life estate with remainder in the parties to this litigation as 'the heirs' of the grantor. As far as this appeal is concerned it can be said that if Isabella did obtain only a life estate, then the parties to this litigation are the joint owners of the property, Isabella having died in 1949 prior to the institution of this proceeding. There is no contention to the contrary, and in fact all of the parties seem to agree on this point.

The deed was introduced in evidence and the original is before us. It is clear that in making the deed a printed form was used, such as was then and is now in general use, having blank spaces to be filled. The deed is set out below. The words which we have italicized were written in the deed, those not italicized are a part of the printed form.

'The State of Alabama, Conecuh County.

'Know all men by these Presents, That for and in consideration of One Dollar ($1.00) Love and affection and other valuable consideration Dollars, to the undersigned grantor N. Z. Hardee in hand paid by Isabella Hardee the receipt whereof is hereby acknowledged I do grant, bargain, sell and convey unto the said Isabella Hardee the following described real estate, to wit:

'The South East quarter (SE 1/4) of the South West quarter (SW 1/4) and the South Half (S 1/2) of the North East quarter (NE 1/4) of the South West quarter (SW 1/4) and the West Half (W 1/2) of the South West quarter (SW 1/4) of the South East quarter (SE 1/4) Section Ten (10) Township Eight (8) and Range Ten (10)

'A life interest in the above described Lands is hereby reserved by the grantor herein named and at his death the Lands Herein described to go the the grantee in fee simple. And at the death of the said grantees death the above described Land is to revert back to the heirs of the above grantor in fee simple

situated, lying and being in the County of Conecuh and State of Alabama.

'To have and to hold to the said Isabella Hardee her heirs and assigns, forever. And I do for myself my heirs, executors and administrators, covenant with the said Isabella Hardee her heirs and assigns, that I am lawfully seized in fee simple of said premises; that they are free from all incumbrances; and that I have a good right to sell and convey the same as aforesaid; that I will, and my heirs, executors and administrators shall warrant and defend the same to said Isabella Hardee her heirs, executors and assigns, forever, against the lawful claims of all persons.

'Given under my hand and seal, this the 6 day of April, 1923.

'N. Z. Hardee (Seal.)'

We have cases holding that while the written and printed parts of instruments, including deeds, are equally binding, if they are inconsistent the written part prevails over the printed form. Porter v. Henderson, 203 Ala. 312, 82 So. 668; John Deere Plow Co. v. City Hardware Co., 175 Ala. 512, 57 So. 821.

But that rule is of no benefit in this case for the claimed conflict in the deed which has precipitated this litigation is not between the printed and written words, but between the two written sentences which appear between the description of the property and the habendum clause and to which we will sometimes refer hereafter as the written paragraph.

It appears from an opinion made a part of the decree that the trial court's holding that the deed of April 6, 1923, from N. Z. Hardee to Isabella Hardee conveyed a fee simple estate was based on the court's understanding that our holdings in the three cases hereafter cited permitted no other conclusion. Henry v. White, 257 Ala. 549, 60 So.2d 149; Wright v. Smith, 257 Ala. 665, 60 So.2d 688; Green v. Jones, 257 Ala. 683, 60 So.2d 857.

In each of those cases we held that the deeds under consideration conveyed a fee simple estate. The holding in each case was based on the application of the arbitrary rule that the granting clause in a deed determines the interest conveyed and when it provides for a certain, specific estate, without repugnancy, obscurity or ambiguity therein, it prevails over introductory statements or recitals and over the habendum and other clauses if they are contradictory of or repugnant to it.

The granting clause in the deed under consideration in Wright v. Smith, supra, provided for a certain specific estate, a fee simple estate, since the words of grant were followed by specific words of inheritance. So, under the facts of that case, there being no repugnancy, obscurity or ambiguity in that clause, we held correctly that the granting clause prevailed. Webb v. Webb's Heirs, 29 Ala. 588; Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A., N.S., 719; Hill v. Gray, 160 Ala. 273, 49 So. 676; Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Graves v. Wheeler, 180 Ala. 412, 61 So. 341; Porter v. Henderson, 203 Ala. 312, 82 So. 668; Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180; Gargis v. Kennemer, 216 Ala. 494, 133 So. 620; King v. King, 242 Ala. 53, 4 So.2d 740; Rowell v. Gulf, M. & O. R. Co., 248 Ala. 463, 28 So.2d 209; Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420. The same is true of our holding in Henry v. White, supra.

The granting clause in the deed involved in Green v. Jones, supra, did not contain words of inheritance or other words sufficient to show the granting of any certain or specific estate. Hence, we were in error in saying, 'The granting clause in the deed in question purports to convey the entire title to the grantee Jones, * * *' and in holding that the granting clause prevailed. That holding in Green v. Jones, supra [257 Ala. 683, 60 So.2d 858], cannot be approved or followed. Graves v. Wheeler, supra; Henry v. White, supra.

We now return to a consideration of the deed from N. Z. Hardee to Isabella Hardee in the instant case.

The real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, including its several parts, resort to arbitrary rules of construction is not required. And it is the duty of the court under this rule of construction to reconcile the terms of the instrument, if that may reasonably be done, to avoid a repugnancy in its provisions or terms. Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420; Gamble v. Gamble, 200 Ala. 176, 75 So. 924 and cases...