Howze v. Dew

• Decision Date: 28 January 1890
• Citation: 7 So. 239,90 Ala. 178
• Parties: HOWZE ET AL. v. DEW.
• Court: Alabama Supreme Court

7 So. 239

90 Ala. 178

HOWZE ET AL. v. DEW.

Supreme Court of Alabama

January 28, 1890

Appeal from circuit court, Perry county; JOHN MOORE, Judge.

MCCLELLAN J.

William S. Phillips died in 1872, owning sundry parcels of land in Dallas county, and one tract of 320 acres situated in Perry county. He left surviving him seven children, to whom all of his lands in both counties descended as tenants in common. William M. Phillips, one of the co-tenants, while residing on the Perry county tract of land, on January 20, 1874, executed a mortgage to appellant Howze, the granting clause of which so far as it concerns the property involved here, is in the following language: "We do hereby grant, bargain, sell and convey to the said John Howze the following personal property, to-wit: *** Also the following real estate, lying in the county of Perry and state aforesaid, to-wit: All of the interest of the said Wm. M. Phillips, as heir and distributee of Wm. S. Phillips, deceased." This conveyance contains only the following express covenant "And the said Wm. M. Phillips hereby declares that the above-conveyed property is his own, and that there is no lien or incumbrance upon the same, except" a certain mortgage conveying a part of the personalty. About September, 1876, a bill was filed in the chancery court of Dallas by some of the tenants in common against William M. Phillips and the other co-tenants for partition among them of all the lands which they held as heirs of William S. Phillips in both counties and also for partition of a parcel of land lying in Perry county, and containing 320 acres, which had descended to them from their mother, Louisa J. Phillips. The final decree in that cause, rendered July 2, 1877, allotted to William M. Phillips, as his one-seventh share of all the lands in both counties and descending from both ancestors, 160 acres of the 320 acres in Perry county, which had belonged to William S. Phillips. William M. Phillips devised this land to his wife, Amanda C., (now Amanda C. Dew,) and departed this life in October, 1881. His will was duly probated. The appellant Howze, default having been made in the payment of the debt secured by the mortgage, sold the land thus allotted to William M. Phillips, under the power contained in the instrument, in March, 1882, and himself became the purchaser. He entered into possession on the day of sale, and has since held it. This suit is by Mrs. Dew, formerly Amanda C. Phillips, claiming under the will of her first husband, for the recovery of possession of the land, and damages for its detention.

One of the prominent questions presented by the exception reserved on the trial involves the construction of the mortgage in respect to the quantity of land conveyed by it. The evidence is without conflict that, at the time of executing the instrument, the mortgagor, as an heir of William S. Phillips, deceased, owned an undivided one-seventh interest in each of the several parcels of land lying in Dallas county, and in one tract of 320 acres situated in Perry county, and that he was seised of no other or greater estate or interest in any one of said parcels. He thus held an undivided one-seventh interest, in common with his brothers and sisters, in a house and lot in the city of Selma; a like interest in a plantation lying on the Cahaba river, in Dallas county; and the same interest and estate, and no more, in the tract of 320 acres lying in Perry county. There is no controversy but that it was competent for William M. Phillips to have conveyed his entire interest in these lands, or that, had he done so, his grantee would have taken upon partition whatever was allotted to him in severalty, whether lying in the one or the other county. It is equally clear in principle and on authority that a conveyance by Phillips of his undivided interest in any one of the separate parcels would have constituted his grantee a tenant in common with the holders of the other undivided interests, and entitled him on partition to have allotted to him in severalty one-seventh of that parcel. Freem. Co-Tenancy, § 208; Butler v. Roys, 25 Mich. 53; Primm v. Walker, 38 Mo. 98; Markoe v. Wakeman, 107 Ill. 262. It may be, too, that had Phillips undertaken to convey the tract in Perry county as an entirety, his deed would have been allowed to operate primarily so as to pass a one-seventh interest to his grantee, and on partition, if his allotment in severalty was carved out of this tract, the title he acquired thereto would inure to the benefit of his grantee, and vest the fee in the latter. This result is denied by some authorities which hold such a deed absolutely void, though the weight of adjudication and the better reason support the proposition that such a conveyance should be accorded full force and effect as against any interest the grantor has or subsequently acquires in the land. Freem. Co-Tenancy, § 199 et seq.; White v. Sayre, 2 Ohio, 112; Robinett v. Preston, 2 Rob. (Va.) 278; Gates v. Salmon, 35 Cal. 588; Stark v. Barrett, 15 Cal. 370; Barnhart v. Campbell, 50 Mo. 599.

It is manifest that the mortgage executed by appellee's devisor, and under which appellants claim title to the whole allotment made to him out of his father's lands, is neither a conveyance of the mortgagor's interest in all the lands of his ancestor, for it is in terms confined to "real estate lying in Perry county," nor of the entirety in the lands so situated, for it covers only "all the interest of the said Wm. M. Phillips, as heir and distributee of Wm. S. Phillips, deceased," therein. Giving to these limitations the effect which their terms naturally and reasonably enforce, there remains but one possible field of operation for the granting clause of the conveyance. It passes, not one-seventh of all the lands, the effect of which, upon division, would be to vest in the mortgagee title in severalty to whatever part falls to William M. Phillips; and not the entirety of the Perry county lands, which would operate to vest any part of that tract which is allotted to the mortgagor, in the mortgagee; but the interest of one of seven heirs in the tract of 320 acres lying in Perry county; and that interest alone became vested in the mortgagee as a tenant in common with the other co-tenants. William M. Phillips still owned and held, wholly unaffected by the mortgage, an undivided one-seventh interest in each of the parcels lying in Dallas county. Williams College v. Mallett, 12 Me. 398; Randell v. Mallett, 14 Me. 51. The grant was not enlarged or extended by the subsequent partition and allotment to William M. Phillips of more than one-seventh of the Perry county land, in consideration, so to speak, for his surrender of his interest in the Dallas county parcels. If he had exchanged other property lying in Dallas county or elsewhere-property which did not come to him through his father-for the excess over the one-seventh in the Perry lands,...