Kyle v. Liddell

• Decision Date: 30 May 1889
• Citation: 87 Ala. 423,6 So. 296
• Parties: KYLE ET AL. v. LIDDELL ET AL.
• Court: Alabama Supreme Court

6 So. 296

87 Ala. 423

KYLE ET AL. v. LIDDELL ET AL.

Supreme Court of Alabama

May 30, 1889

Appeal from chancery court, Etowah county; S. K. MCSPADDEN Chancellor.

The bill in this case is filed by W. H. Denson, R. B. Kyle, and Sam Henry, as complainants, against Daniel Liddell and wife and Mrs. Perdue, to foreclose a deed of trust made by Liddell and wife to secure the payment of a promissory note made payable to W. J. Perdue, which said note is described in said deed of trust. Mrs. Perdue is made a party defendant because she conveyed all of her property to Kyle and Henry by deed executed in 1886, and which is set out below. The promissory note secured by the deed of trust is made payable to W. J Perdue; but the deed of trust is made to W. H. Denson, as trustee, with certain instructions to sell the said property upon failure of said Liddell to pay the note when the same falls due, which instructions are sufficiently set forth in the opinion. W. J. Perdue died in 1884, leaving a last will and testament, which was duly probated on the 19th of January, 1885. By this last will and testament all of the property of every description belonging to the said W. J Perdue was devised and bequeathed to his wife, the said Augusta E. Perdue. On the 9th of August, 1886, Mrs. Perdue conveyed to R. B. Kyle and Sam Henry all of her property under the following conveyance, which is made an exhibit to the bill:

"State of Alabama, Etowah county. This indenture, made this the 9th day of August, 1886, between Augusta E. Perdue of the county and state aforesaid, of the first part, and R. B. Kyle and Sam Henry of the said county and state of the second part, witnesseth: That whereas the said Augusta E. Perdue, being in feeble health, but of sound mind, but unable to look after and care for property, and being desirous of having her property cared for during her natural life, and to make provision for her comfort and welfare during her life, and for the further purpose of disposing of my property, real, personal, and mixed, and having the utmost confidence in my friends R. B. Kyle and Sam Henry, now, therefore, in consideration of the sum of one dollar in hand paid by the said R. B. Kyle and Sam Henry, the receipt of which is hereby acknowledged, hath this day bargained and sold, released, conveyed, and confirmed, and by these presents doth bargain, sell, release, convey, and confirm unto the said R. B. Kyle and Sam Henry all my property, real, personal, and mixed, together with the tenements, hereditaments, and appurtenances thereunto belonging, and the reversions, remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, claim, and demand whatsoever of the said party of the first part in the above-described property, to have and to hold unto the said R. B. Kyle and Sam Henry and their assigns forever; in trust, nevertheless, and upon the uses and purposes hereinafter mentioned, namely: First, to take charge of said property; to take, collect and receive the rents, issues, and profits thereof, and out of the proceeds to keep said premises in good order and repair, and to pay all charges, taxes, and assessments that may be imposed thereon, and pay the residue to Augusta E. Perdue during her life; and the said Augusta E. Perdue does by these presents hereby stipulate, and it is hereby understood, that at and after the death of the said Augusta E. Perdue the property above mentioned shall revert to the said R. B. Kyle and Sam Henry in fee-simple and in equal shares; and for and in consideration of valuable services rendered me by said R. B. Kyle and Sam Henry, and the further sum of one dollar to me in hand paid, the receipt of which is hereby acknowledged, I do hereby grant, bargain, sell, and convey, to the said R. B. Kyle, and Sam Henry, all my property, real, personal, and mixed, that I may die seised or possessed of, together with all the tenements, hereditaments, and appurtenances thereto belonging, to have and to hold to the said R. B. Kyle and Sam Henry in equal shares, and to their assigns, forever, less one-eighth of an acre each, to be given to Ellen Anderson and Bookie Whorton; and the said R. B. Kyle and Sam Henry are charged with the duty and are hereby authorized to lay off to Ellen Anderson one-eighth of an acre of land, including the building now occupied by the said Ellen Anderson, and one-eighth of an acre of land to Bookie Whorton, including the building now occupied by the said Bookie Whorton, and to execute a deed in fee-simple to each of them to said land; and I hereby revoke all other arrangements as to the disposition of my property, either verbal or written. In witness whereof I have set my hand and seal the day and date above written."

Liddell and wife never answered the bill, but confessed the same. Mrs. Augusta E. Perdue filed demurrers to the bill, the main ground of which were that the instrument made by Mrs. Perdue, August 9th, and copied above, was not a deed or a conveyance in præsenti, but a testamentary paper; and that Mrs. Perdue is alive; that the said Kyle and Henry have no interest in or right to control the deed made by Liddell and wife to Denson, or to have collected the debt secured by said deed. The chancellor sustained the demurrers of Mrs. Perdue, and it is from this decree by the chancellor that the present appeal is prosecuted, and the said decree is assigned as error.

W. H. Denson and Watts & Son, for appellants.

Dortch & Martin, for appellees.

STONE C.J.

The points at issue in this cause arise mainly out of a written instrument bearing date August 9, 1886, and signed by Augusta E. Perdue. One of the controverted questions is whether that instrument is a deed or a will. It was drawn manifestly by an inexperienced draughtsman. The reporter will set it out in extenso. The conveyance has many of the...