Holland v. Flinn

• Decision Date: 04 April 1940
• Docket Number: 4 Div. 127.
• Parties: HOLLAND v. FLINN.
• Court: Alabama Supreme Court

195 So. 265

239 Ala. 390

HOLLAND v. FLINN.

4 Div. 127.

Supreme Court of Alabama

April 4, 1940

Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.

Action under Declaratory Judgments Act, Code Supp.1936, § 7881 (11) by H. J. Flinn against S. B. Holland, for construction of a will and ascertainment of title to land. From a judgment favorable to the plaintiff, the defendant appeals.

Reversed and remanded.

Ben H Lightfoot, of Luverne, for appellant.

Ewell C. Orme, of Troy, for appellee.

BOULDIN Justice.

Appellee H. J. Flinn, brought this action under the Declaratory Judgment Act against appellant, S. B. Holland.

The averments of the complaint, admitted by the answer, disclose that plaintiff conveyed to defendant a described lot or parcel of land in the City of Luverne. The conveyance was by warranty deed purporting to pass a fee simple title. The defendant, grantee, is in possession under such conveyance. A dispute or controversy has arisen between these parties, grantor and grantee, as to whether the deed did convey a fee simple title. The grantee is interested in having this question now determined because he desires to erect a valuable building on the property.

The complaint discloses that the plaintiff, grantor, derived title through mesne conveyances from Cuba E. Haycraft, claiming as devisee under the will of her father, Francis M. Cody, deceased. The will is made an exhibit to the complaint.

The third item of the will reads:

"I give and bequeath to my daughter, Cuba E. Haycraft" (Described lands including the lot in question).

"To have and to hold for her own use and benefit as long as she lives and at her death I direct and will that if any of the above described property mentioned in this item remains in her possession at her death the same to be sold by my executors or otherwise divided and the proceeds be divided as follows: One-sixth to the heirs of my daughter, M. L. Sikes. One-sixth to the heirs of my daughter, F. W. Sentell. One-sixth to my daughter, C. E. Haycraft. One-sixth to the heirs of my son, T. L. Cody. One-sixth to my son, J. M. Cody. One-sixth to my son J. D. Cody."

Cuba E. Haycraft is still living. The deed from her to plaintiff's predecessors in title is not in the records but the bill proceeds on the theory that it purported to pass a fee simple title.

The bill prays for a construction of the will, and that the court "render a decree ascertaining and determining whether or not the complainant through his title to said lands which was sold to the respondent and obtained from Cuba E. Haycraft, is a fee simple title" and by declaratory judgment "adjudicate and declare that the said complainant conveyed a fee simple title in said lands to the respondent."

The answer admitted the facts averred but denied the title acquired by defendant was a fee simple title, and joined in a request for a declaratory judgment.

The trial court, on these averments, construing the will, decreed that the third item thereof devised to Cuba E. Haycraft such an estate and power of disposition as enabled her to convey a fee simple title, and decreed respondent to be the owner in fee simple. The respondent appeals.

Manifestly both parties by this appeal seek a decision of this court on the question of the state of the title, affirming or reversing the court below. No question was raised in the court below,...