Johnson v. Harrison
| Decision Date | 02 March 1961 |
| Docket Number | 7 Div. 452 |
| Citation | 272 Ala. 210,130 So.2d 35 |
| Parties | Hazel Curlee JOHNSON v. L. L. HARRISON et al. |
| Court | Alabama Supreme Court |
Knox, Jones, Woolf & Merrill, Anniston, for appellant.
Chas. Thomason, Anniston, for appellees.
This is an appeal from a decree of the Circuit Court of Calhoun County, in Equity, in a suit brought by the heirs at law of H. F. Harrison, deceased, against Hazel Curlee Johnson, the niece of the deceased, to set aside a deed executed by Harrison during his lifetime to Mrs. Johnson, the appellant.
The complaint as last amended sought cancellation of the deed on four grounds: (1) mental incapacity of the grantor, (2) undue influence on the part of the grantee in the deed, (3) lack of delivery of the deed during the life of the grantor, and (4) forgery.
The lower court found that the deed was executed by the grantor named therein, that there was no undue influence exercised over him and that he was mentally capable of executing the deed, but that there had been no delivery in the lifetime of the grantor named in the deed and therefore it was ineffectual to pass title.
The deed sought to be cancelled was entered into on March 26, 1954, by and between H. F. Harrison, party of the first part, and Hazel Curlee Johnson, party of the second part, and was in words and figures as follows:
'The State of Alabama
'Calhoun County
'This Indenture, made and entered into on this 26th day of March, 1954, by and between H. F. Harrison, party of the first part, and Hazel Curlee Johnson, party of the second part:
'Witnesseth: That, for and in Consideration of the sum of One Thousand and no/100 Dollars, to the part--of the first part in hand paid by the part--of the second part, the receipt whereof is hereby acknowledged, the part--of the first part ha--granted, bargained and sold, and do--by these presents grant, bargain, sell and convey unto the part--of the second part, the following described real property, to-wit:
'Lot No. Sixteen (16) in Block 'C' fronting Sixty (60) feet on the West Side of Leighton Avenue and running back of equal width One Hundred Sixty (160) feet to an alley, as shown by the map of Corning Highlands, duly recorded in the Probate Office of Calhoun County, Alabama, situated in Anniston, Calhoun County, Alabama. This her home her life time and after he death her daughters will become owner of same Daughters Margarette Johnson and Stephenie Johnson.
'To Have and to Hold, together with all and singular the rights, tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, unto the party of the second part, her heirs and assigns, in fee simple.
'And the party of the first pard does hereby covenant with the party of the second part that she is lawfully seized in fee of the said premises, that she had a good right to sell and convey the same; that said premises are free from incumbrance; and that he will warrant, and will forever defend the title to said premises against the lawful claims and demands of all persons whomsoever.
'In Witness Whereof, the party of the first part has hereto set his hand and seal, on this, the day and year herein first above written.
'(Signed) H. F. Harrison (L.S.)'
Appellant, in assigning errors, presents two question: (1) that the minor children of Hazel Curlee Johnson, Margarette and Stephenie Johnson, are not made parties to the suit, and that they as remaindermen of the suit property are indispensable parties; (2) that the evidence is sufficient to show effectual delivery of the deed during the lifetime of the grantor and that the court erred in its finding as a matter of law from the testimony in this cause that there was no delivery of the deed during the lifetime of H. F. Harrison (grantor).
The deed was found in a tin box which was still in the possession of the grantor at the time he took his life. After his death, the brother of Mrs. Johnson, Hoyt Curlee, got the box and opened it and the deed was taken from the box. Hoyt Curlee said in the presence of the grantee (Mrs. Curlee Johnson):
'Hazel, we have something in this box that concerns you.'
Hazel looked surprised and her mother said that she was surprised.
Hoyt Curlee testified that some time before Mr. Harrison (grantor) died, he showed the deed here involved to him (Hoyt Curlee) and told him to take the deed, and that he (Hoyt Curlee) told the grantor that he had no place to keep it. Curlee testified that he told Mr. Harrison:
'I told him to keep them for me, when I did get a safe place to keep them I would come and get them.'
This transaction between the deceased grantor and Hoyt Curlee took place some two months before the grantor died.
The appellant has correctly stated the law as to who are indispensable parties, but it is not applicable to this case upon proper construction of the deed involved.
All conveyances of land are construed as fees unless expressly limited. Title 47, § 14, Code of 1940. In construction of deed, intent of parties will be sought in entire instrument. Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420; Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180; Hardee v. Hardee, 265 Ala. 669, 63 So.2d 127, and cases therein cited.
Another rule of construction of deeds is that when subsequent words are of doubtful import, they cannot be construed as to contradict the preceding words which are certain. Petty v. Boothe, 19 Ala. 633; McCombs v. Stephenson, 154 Ala. 109, 44 So. 867; Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Hardee v. Hardee, supra.
Also, the granting clause in deed determines interest conveyed and when not obscure or ambiguous it prevails over introductory statements or recitals. 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; Hardee v. Hardee, supra.
In other words, the presumption is, and all doubts are resolved in favor of a fee simple estate. The intention to create a lesser estate than a fee must clearly appear, for the courts will not construe the grantor's words as conveying a lesser estate if a different meaning can fairly be given to them.
Looking at the deed as a whole, the first sentence shows a grant to one grantee. True, there were no words of inheritance following, therefore, we look to the next words following description. This sentence contains an unintelligible and a non-sensical phrase 'her daughters will become owner of same Daughters Margarette Johnson and Stephenie Johnson.'
With such phrasing, the sentence is not clear or certain, it is obscure and of doubtful import. It requires editing, punctuating, and adding to the sentence.
The next part of the deed clearly states 'her heirs and assigns, in fee simple.' The next sentence states 'she is lawfully seized in fee of the said premises, that she had a good right to sell and convey the same.'
The deed imports a fee simple title in all its clauses but one, which is of doubtful import. These facts, plus the presumption that every estate in lands is to be taken as a fee unless clear and expressed terms are shown to the contrary, leads...
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