Herren v. Herren

• Citation: 152 Okla. 281,4 P.2d 92,1931 OK 468
• Decision Date: 21 July 1931
• Docket Number: Case Number: 20006
• Parties: HERREN et al. v. HERREN.
• Court: Oklahoma Supreme Court

1931 OK 468

4 P.2d 92

152 Okla. 281

HERREN et al. v. HERREN.

Case Number: 20006

Supreme Court of Oklahoma

Decided: July 21, 1931

Syllabus

¶0 1. Wills--Instrument Declaring no Title Should Vest in Grantees Till After Death of Grantor Held Void as Deed.

Where a written instrument in the form of a deed of conveyance expressly declares that no title to the property conveyed should vest or inhere in grantees until after the death of grantor, such instrument passes no present interest in the property, and is void as a deed.

2. Homestead--Requisites of Abandonment.

When the homestead character once attaches to land, it will continue to be the homestead until the owner voluntarily changes its character by going away from it with the family with the fixed and definite intention of not returning and occupying it as a home, or forms such fixed and definite intention after leaving it.

3. Same--Finding That Homestead Was not Abandoned Sustained.

Record examined, and held, finding of the trial court that the premises in question were not abandoned as a homestead is not against the clear weight of the evidence.

Appeal from District Court, Alfalfa County; Charles Swindall, Judge.

Action by Rebecca Herren against Edgar Herren et al. Judgment for plaintiff, and defendants appeal. Affirmed.

A. R. Carpenter and Simons, McKnight, Simons & Smith, for plaintiffs in error.

Ira A. Hill, W. L. Owen, and H. L. Heiple, for defendant in error.

HEFNER, J.

¶1 This action was brought in the district court of Alfalfa county by Rebecca Herren against Edgar Herren, Eugene Herren, and Elza Herren, to recover possession of 160 acres of land located in that county and to cancel certain deeds and remove the same as clouds upon the title, and to quiet the title thereto.

¶2 Plaintiff, who was the surviving wife of decedent, William H. Herren, claims the right of possession as his heir. Defendants, who were children of decedent by a former wife, claim title under two separate deeds executed by deceased conveying the property to them. The case was tried to the court, resulting in a judgment in favor of plaintiff.

¶3 Defendants contend that the judgment is against the clear weight of the evidence. The evidence discloses that, on and prior to April 6, 1912, William H. Herren, deceased, who was at that time a widower, was the owner of the property. On that day he deeded the property to the defendants. The trial court held this deed void for the reason that it did not convey a present interest in the land, and was therefore void as a deed. The deed contained the following clause:

"The said party of the first part hereby and herein reserves to himself, the said party of the first part, a life estate in said land and premises, and the within grant and conveyance is made on the express understanding of all parties hereto that no right, title, interest, nor estate in said land and premises shall vest or inhere in said parties of the second part until the death of said party of the first part."

¶4 If it was the intention of the grantor that a present interest was to vest in the grantees, then we think the instrument should be held a conveyance of the property to the grantees subject only to the life estate of the grantor. If it was not his intention to convey a present interest in the property, and no interest was to become vested until after his death, then we think the instrument is void as a deed. What was his intention? For the answer to this question, we must look to the four corners of the instrument. If it was his intention to vest a present interest in the grantees subject to his life estate, then he could commit no waste on the property. In such a case, if oil, coal, salt, or any other mineral, which forms a part of the corpus of the land, were to be discovered during his lifetime, he would not be entitled to the proceeds derived therefrom. If such was his intention after the delivery of the instrument to the grantees, he could not execute a valid lease on the premises for the purpose of developing such minerals. If the grantees in the deed should join him in a lease, the principal derived from the sale of the minerals would go to the grantees and the interest thereon would go to him during his life. To hold the instrument a deed, it must be conceded that it was his intention to convey this valuable right to the grantees at the time the deed was delivered to them, and such right, if it be a valid deed, could not be postponed until after his death; as a life tenant, he could commit no waste.

¶5 It is true that the instrument states that the grantor reserves to himself a life estate, and that sentence is followed by the expression that it is "the express understanding of all parties hereto that no right, title, interest, nor estate in said land and premises shall vest or inhere in said parties of the second part until the death of said party of the first part." With that stipulation in the instrument, can it be contended that if minerals were discovered on the premises during the lifetime of the grantor, he would not have the right to use and enjoy the same during his lifetime? Vast sums of money might be realized from the sale of minerals produced from the land during his lifetime, and yet he would have no right to dispose of, use, or enjoy the principal sums so derived, and would be limited to the interest produced therefrom. Under these circumstances, we do not think, in the face of the provision in the instrument, that it was his intention to give a present vested right, so valuable as this, to the grantees in the instrument. We think it was his intention to postpone such rights until after his death. We think the instrument clearly negatives the idea that he intended to convey to his children any interest in the property until after his death, because he says in plain language that the parties of the second part shall have no right, title, interest nor estate in said premises, nor shall any right vest or inhere in said premises to the parties of the second part until the death of the party of the first part. In the case of Goodale v. Evans, 263 Mo. 219, 172 S.W. 370, the Supreme Court of Missouri said:

"Moreover, that language clearly negatives the idea that the grantor intended to convey to the grantee any interest in the property until after his death, for he says that she is to 'have and hold the premises * * * from and after his death,' etc.

"And in addition to this: The grantor clearly and fully expresses his intention in the latter part of the deed, where he states that 'the intention of the grantor by this deed is to convey said property to said Leah J. Evans for life, to take effect on the death of the grantor,' etc.

"What is to take effect from and after his death? Clearly the conveyance, for that is what the grantor is speaking of, for he says that, by this deed, he intends to convey said property to the grantee, to take effect upon his death.

"This language is too clear for interpretation or construction. The more such an attempt is made the more befogged becomes the meaning of the deed, which is plain upon its face.

"The following adjudications fully sustain our view of this deed: Aldridge v. Aldridge, 202 Mo. 1, c. 572. Long v. Timms, 107 Mo. 512, 17 S.W. 898; and Speed v. Railroad, 163 Mo. 111."

¶6 The last expression in the quoted clause from the deed seems to clearly indicate that it was the intention of the grantor that no rights should vest in the grantees until after his death.

¶7 In addition to the foregoing, the intention of the grantor is clearly shown in the granting clause of the deed, which provides that the grant was not to be effective until after the death of the grantor. The first paragraph of the deed is as follows:

"Know All Men by These Presents:

"That Wm. H. Herren, a widower, of Alfalfa county, in the state of Oklahoma, party of the first part, in consideration of the sum of $ 1, and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell, and convey unto his sons, Ezey Herren, Edgar Herren and Eugene Herren, parties of the second part, and to their heirs and assigns forever, all the right, title, interest, and estate of the party of the first part, after the death of said party of the first part, in and to the land and premises hereinafter described situated in the county of Alfalfa, in the state of Oklahoma, to wit: * * *"

¶8 The granting clause specifically provides that grantor "does hereby grant, bargain, sell, and convey * * * all his right, title, interest, and estate * * * after the death of said party of the first part, in and to the land and premises. * * *"

¶9 The grantor, in effect, says:

"After my death I hereby grant, bargain, sell, and convey unto the grantees all my right, title, and interest in and to said land."

¶10 When does he say he makes the conveyance? After his death. This is not in conflict, but in full accord with the first quotation made hereinbefore from the deed, for there it was said:

"The within grant and conveyance is made on the express understanding of all the parties hereto that no right, title, interest, nor estate in said land and premises shall vest or inure in said parties of the second part until the death of the party of the first part."

¶11 Taking both quotations together, the grantor, in effect, has said:

"After my death I convey unto the grantees all my right in and to said lands, and it is expressly understood that no rights vest in the grantees until after my death."

¶12 From the foregoing it seems clear that the grantor made no attempt whatever to convey any interest to the grantees until after his death. We think it is clear that the deed was not to take effect untiledged, does hereby grant, bargain, sell, and convey unto his sons, Ezey Herren, Edgar Herren and Eugene Herren, parties of the second part, and to their heirs and assigns forever, all the right, title, interest, and estate of the party of the first part,...