Henry v. White
| Decision Date | 26 June 1952 |
| Docket Number | 3 Div. 602 |
| Citation | 60 So.2d 149,257 Ala. 549 |
| Parties | HENRY et al. v. WHITE. |
| Court | Alabama Supreme Court |
L. A. Sanderson and Albert Roemer, Montgomery, for appellants.
Rushton, Stakely & Johnston, Montgomery, for appellee.
This is a declaratory judgment proceeding, seeking construction of a deed, filed in the circuit court of Montgomery County, in equity, by appellee against appellants.
On August 8, 1910, Lula J. Powell, now deceased, executed a real estate deed to her only child, Mary Louise Powell, which deed, with the description omitted, reads:
'The State of Alabama,
Montgomery County.
'Know All Men By These Presents, That, I, Lula J. Powell, a widow, for and in consideration of the love and affection which I have for my only daughter, Mary Louise Powell, and of one dollar to me in hand paid, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell and convey to the said Mary Louise Powell, and her heirs, the following described real estate lying and being in said county and state, towit: (Description)
'In Testimony Whereof, I, the said Lula J. Powell have hereunto set my hand and seal this the 8 day of Aug., 1910.
'Lula J. Powell (Seal)'
On October 15, 1948, Mary Louise Powell executed a warranty deed to Wade H. White, the appellee, purporting to convey a fee-simple title to a part of the land included in the deed executed to her by her mother on August 8, 1910.
Thereafter, W. H. White and J. P. Henry entered into a written contract whereby Henry agreed to purchase and White agreed to sell the real estate described in the deed from Mary Louise Powell to White under date of October 15, 1948.
White was willing to carry out the terms of his contract with Henry, but the latter failed and refused to carry out his part of the agreement, contending that White did not have a good title to the property inasmuch as his grantor, Mary Louise Powell, did not secure a fee-simple title thereto under the deed executed to her by her mother on August 8, 1910.
The foregoing facts were alleged in the bill for declaratory judgment filed by White against Henry, Mary Louise Powell, and several first cousins of Mary Louise Powell, her only next of kin. The bill prayed that a guardian ad litem be appointed to represent that class of persons who may be heirs of Mary Louise Powell at the time of her death, including unborn children. The bill further prayed: '* * * that, upon a hearing of this matter, your Honors will render a declaratory judgment and decree defining the rights of the parties, and declaring that the warranty deed, dated August 8, 1910, attached hereto and marked Exhibit 'A', conveyed a fee simple estate to the Respondent, Mary Louise Powell, and that the Complainant's title to the realty described in Paragraph 3 is not defective because of said deed, and that Respondents and those they represent as 'heirs of Mary Louise Powell' have no interest therein.'
Upon the filing of the bill a guardian ad litem was appointed as prayed. The guardian ad litem answered the bill denying its allegations and demanding strict proof thereof.
The first cousins of the respondent Mary Louise Powell, her only next of kin, all filed disclaimers of any interest in the suit property and joined with complainant, praying that he be granted the relief sought in his bill of complaint. The respondent Mary Louise Powell did likewise.
The respondent J. P. Henry filed an answer to the bill, in which he incorporated several grounds of demurrer. In his answer he admitted he entered into the contract with the complainant, White, and averred that he is ready, willing and able to comply with the terms of the contract provided he can receive a fee-simple title to the land free of encumbrances and lien, but set up in his answer that complainant, White, does not have a fee-simple title to the land, inasmuch as his grantor, Mary Louise Powell, could only convey to him the interest which she owned therein, which was merely an interest for and during her natural life. The demurrer of the respondent J. P. Henry being overruled, the cause was heard before Honorable Eugene W. Carter, one of the judges of the circuit court of Montgomery County, in equity.
The trial court in its final decree declared in substance as follows: (1) that the deed dated August 8, 1910, in which Lula J. Powell, deceased, was grantor and Mary Louise Powell was grantee, vested in the respondent Mary Louise Powell the fee-simple title to the real estate described therein; (2) that the complainant by virtue of the deed executed to him by Mary Louise Powell on October 15, 1948, has fee-simple title to the property therein described; (3) that neither the respondent Mary Louise Powell, her next of kin, all of whom were made respondents to the bill, nor those who may be her heirs at her death, including unborn children, have any right, title or interest in or encumbrance upon the land described in the deed executed by Lula J. Powell to Mary Louise Powell on August 8, 1910.
From this decree an appeal has been taken to this court.
Error is assigned as to the action of the trial court in overruling the demurrer of the respondent J. P. Henry. In Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11, we pointed out that ordinarily the test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. It was further pointed out that if the complaint states the existence of a bona fide justiciable controversy which should be settled, a cause of action for a declaratory judgment is stated and the demurrer should be overruled. See Vinson v. Vinson, 256 Ala. 259, 54 So.2d 509; McCall v. Nettles, 251 Ala. 349, 37 So.2d 635; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658; White v. Manassa, 252 Ala. 396, 41 So.2d 395. The bill shows such an actual controversy as to support the jurisdiction of the court for a declaratory judgment. Title 7, § 157, Code 1940. The demurrer was correctly overruled.
The real inquiry in the construction of a deed is to establish the intention of the parties, especially that of the grantor; but a corollary to this rule is that 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 applied. Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A.,N.S., 719. So-called arbitrary rules should never be resorted to until all efforts to reconcile the conflicting parts have failed. Petty v. Boothe, 19 Ala. 633.
If, however, two conflicting intentions are expressed which cannot be reconciled there is no alternative but to construe the deed by the rules, even though they may be denominated arbitrary. Dickson v. Van Hoose, supra; Graves v. Wheeler, 180 Ala. 412, 61...
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