Malin v. Rolfe

• Decision Date: 29 March 1890
• Parties: MALIN v. ROLFE
• Court: Arkansas Supreme Court

13 S.W. 595

53 Ark. 107

MALIN v. ROLFE

Supreme Court of Arkansas

March 29, 1890

APPEAL from Cross Circuit Court, J. E. RIDDICK, Judge.

Judgment reversed and cause remanded.

Block & Bridges and Sanders & Watkins for appellants.

Mollie Head had no dower interest, the property was her separate estate, and if any validity is attached to the deed of trust it must pass her title. Deeds are most strongly construed against the grantor. The deed conveyed all the interest Mollie Head had. 51 Ark. 420; 43 Ark. 160; 43 Ark. 29.

N. W Norton for appellee.

No apt words of conveyance were used to convey Mollie Head's separate estate. She did not join in the operative words of the grant. 42 Ark. 357; 3 Wash. R. Pr., ch. 4, par. 20; 4 How., 225; 1 Metc., 542; 9 Mass. 161; 3 Mason, 347.

OPINION

HUGHES, J.

This is a suit in ejectment, in which the only question to be determined here is as to the sufficiency of a deed in trust executed by L. T. Head and Mollie Head his wife, who was the mother of all the appellees save Rolfe, who was their tenant to John B. Bruner as trustee of the appellants, which deed formed a part of the appellants' claim of title, a copy of which was exhibited with their complaint.

The deed bore date the 15th day of March, 1884, and was made to secure the payment of a debt, which L. T. Head owed appellants and authorized the trustee Bruner upon default to sell and convey the property, which he executed by selling and conveying the property to the appellants, who were the purchasers at the sale. Possession was admitted by the appellees, and appellants' rights to possession denied.

The exceptions to this deed were in effect that Mollie Head joined in the deed only for the purpose of relinquishing dower to such property therein described as belonged to her husband; that she did not join in the granting clause of the deed; and that as to her separate property described therein said deed was void; that it contained no words sufficient to pass her title; and that the clause in said deed in reference to Mollie Head contained no description of property or reference to property elsewhere described.

The exceptions were sustained and appellants excepted. A trial was had before the court sitting as a jury, and appellants offered to read in evidence said deed of trust, which was excluded by the court upon the trial, to which appellants excepted. Judgment was rendered for appellees, and an appeal was taken by appellants. The question to be determined is presented by the record and there is no bill of exceptions. After reciting the premises, the granting clause in the deed by the husband begins: --

"Now therefore, I, L. T. Head, for and in consideration of the premises and the sum of one dollar to me paid by John Bruner as trustee, have granted, bargained and sold, and by these presents do grant, bargain, sell and convey unto said John B Bruner and his assigns as trustee the lands and tenements following, to-wit:" Then follows a description of the town lots, and the provisions for sale and conveyance by the trustee of the property, upon default of payment of the amount secured by the deed of trust. After which the deed concludes in these words: "Now I, Mollie Head, wife of the said L. T. Head, for the consideration above set forth, do hereby assign, release, relinquish and quit-claim all my right, title, interest and...