King v. Coffee

• Decision Date: 06 November 1930
• Docket Number: 8 Div. 189.
• Citation: 222 Ala. 245,131 So. 792
• Parties: KING v. COFFEE ET AL.
• Court: Alabama Supreme Court

131 So. 792

222 Ala. 245

KING v. COFFEE ET AL.

8 Div. 189.

Supreme Court of Alabama

November 6, 1930

Rehearing Denied Jan. 22, 1931.

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Bill to quiet title to real estate by Mamie C. King against T. J Coffee and others. From a decree for defendants, complainant appeals.

Reversed and rendered.

Kirk &amp Rather, of Tuscumbia, and Andrews, Peach & Almon, of Sheffield, for appellant.

Mitchell & Hughston, of Florence, for appellees.

FOSTER J.

The first subject for consideration on this appeal involves an interpretation of a partition deed between the heirs of Robert King. The rules which control the court in this respect are well settled by our cases.

One of the late cases, Long v. Holden, 216 Ala. 81, 112 So. 444, 446, 52 A. L. R. 536, expresses many of such rules. To repeat briefly: The conveyance must be so interpreted as to give effect to the intention of the parties, as manifested by its language, when the whole instrument is taken together, in connection with the subject-matter and surrounding circumstances. When so considered, the language is controlling. 18 Corpus Juris, 252. Consideration may also be given to the fact that the instrument shows that it was prepared by a person not acquainted with technical terms. Findley v. Hill, 133 Ala. 229, 32 So. 497; Castleberry v. Stringer, 176 Ala. 250, 57 So. 849.

This rule limits the inquiry to facts and circumstances, and does not give effect to what the parties may have otherwise stated, nor their negotiations, nor their purpose or intentions obtained through other sources. These matters all culminated in the document itself. So that much of the evidence in this case violates the rules, and cannot be considered. Many of the important facts are shown by the instrument itself, viz.: That the land in question was a part of a large tract owned by Robert King, deceased, and set aside to his widow as dower; that the widow was dead, and the purpose of the parties was that the "heirs, legatees and distributees" of Robert King shall thereby make a division and partition of the dower land. So that the instrument itself recites on its face that its purpose is to effect a division of the land. The names of the parties are grouped, showing their connection with deceased, and in each instance the name of the husband or wife is expressed, and it is also stated whether the one or the other is the heir. There are four parts or equal interests. Two of the children having died, their descendants are stated to be entitled to the parents' share. In describing the lands for each such four shares, the name of each of the members of the four groups is given, and the name of the spouse is stated, if there is one. In one clause of the deed the words used are that to such parties there "is set off" a certain portion of the land fully described. Following this is the granting clause, thus expressed: "And the said heirs, legatees and distributees herein mentioned do hereby reciprocally waive, convey and confirm unto each other their heirs and assigns all of their right, title, and interest in the several tracts of land allotted as described in this instrument of writing."

Section 6839, Code 1923, in effect when this instrument was executed, provides that: "Any instrument in writing, signed by the grantor *** is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument." While such statute was in effect this court, in the case of Brewton v. Watson, 67 Ala. 121, stated the rule for construing words of grant, as follows: "Formal, technical words, are not necessary; and when an intent that the estate shall pass is manifested, its words will, if possible, be so construed that it shall take effect. But the want of words cannot be supplied. The only words in the instrument which refer to the passing of title are, 'and the said S. C. Watson, upon the faithful performance of her part of this contract, shall have and be entitled to, at and after the death of said E. A. Browning, all the property, both real and personal, now owned by the said E. A. Browning, with the income and increase thereof, excepting the household furniture belonging to her, none of which is sold or contracted away by these articles of agreement.' These are words of covenant, of contract, not of conveyance. McKinney v. Settles, 31 Mo. 541; Chapman v. Glassell, 13 Ala. 50, 48 Am. Dec. 41; Love v. Crook, 27 Ala. 624; 3 Wash. Real. Prop. 329."

With equal force the statute was considered in Webb v. Mullins, 78 Ala. 111, where the following language was used: "The title to land can be transferred from one person to another, only by apposite and appropriate language. It was not the intention of the statute to dispense with the use of any words whatever, operative to convey. By the statute, the duty is imposed upon the courts to liberally construe the words employed in the conveyance as words of transfer, and give them effect and operation according to the intention of the grantor, to be collected from the entire instrument. There must, however, be some words intended as words of conveyance. They can not be supplied by judicial interpolation."

The foregoing quotations were referred to in the case of Long v. Holden, supra, where the deed contained the following words: "It is so understood that at my death this land is to go to my daughter, L. L. Holden." She was the grantee's daughter.

The words used in the instrument in this case to wit, "is set off," are not words of grant or alienation in their ordinary sense. They import a meaning, otherwise expressed, that the parties are merely dividing the land among themselves, and designating a portion for each of the four shareholders, and their respective portions are therefore said to be "set off" for them. Under a statute of this state the homestead is "set apart" to the widow. The terms "set off," "set apart," and "designate," in this connection, would seem to carry the same idea. We could not call them words of alienation or grant unless such intention is otherwise apparent. Cloud v. Dean, 212 Ala. 305, 102 So. 437. In the place where the name of the spouse of such heir is stated, the words used are not therefore those of "grant or alienation." In the granting clause, however, the words used do import a grant or alienation. There the grantors and grantees alike are described as "said heirs, legatees and distributees." The instrument expressly states who are such heirs, and the name of each spouse respectively.

In some respects this deed is similar to that considered in Clark v. Northern Coal & Coke Co. (Ky.) 112 S.W. 629, 630 wherein the court expressed its interpretation of the deed as follows: "While the instrument is awkwardly drawn, when taken as a whole, we think it was manifestly intended to vest the title to both the land and the personal property in Russell Pinson. The deed is made evidently between the heirs of Henry Pinson, deceased. Russell Pinson was an heir of Henry Pinson; his wife was not. The sum of the...