Massey v. Whittaker

• Decision Date: 30 May 1921
• Docket Number: 21772
• Citation: 126 Miss. 99,88 So. 518
• Court: Mississippi Supreme Court
• Parties: MASSEY ET AL. v. WHITTAKER

88 So. 518

126 Miss. 99

MASSEY ET AL. v. WHITTAKER

No. 21772

Supreme Court of Mississippi

May 30, 1921

DEEDS. Where intention of parties is plain, rule that first of two repugnant clauses must prevail is inapplicable.

The rule of construction that, where two clauses of a deed are repugnant, the first must prevail, cannot be invoked where from the whole instrument, the intention of the parties thereto is plain.

HON. A J. MCINTYRE, Chancellor.

APPEAL from chancery court of Tishomingo county, HON. A. J MCINTYRE, Chancellor.

Suit by H. S. Massey and others against Mrs. Mattie Whittaker for partition. From a decree of dismissal, complainants appeal. Reversed and remanded.

Reversed and remanded.

T. A. Black and W. J. Lamb, for appellant.

There can be no dispute about what the intentions of Mr. Hearn were when he made the deed, and what the intentions of Mrs. Hearn were when she received the deed, as to what she was getting, and that was a life estate. If the deed of H. Hearn to her conveyed the fee in the land, then there was no necessity for her to buy the remainder interest of Willis Hearn.

We submit to the court that our contention in this case is abundantly sustained by the cases of Baker v. Richardson, 96 Miss. 395; Hart v. Gardner, 74 Miss. 159; Robinson v. Payne, 58 Miss. 709.

J. A. Cunningham, for appellee.

The trial chancellor was evidently controlled in his opinion by a law laid down in the case Dunbar et al. v. Aldrich et al., handed down by our court and found in 31 Southern Reporter, page 341, which appears to us to be decisive of the question at issue. Above case has been cited and approved by a wide scope of authorities and stands preeminently the law of this jurisdiction on the question involved.

We have that law yet to learn which affects title of the holder in fee by acquiring quit-claim deeds of others with possible claims. The acquisition of this quit-claim deed cannot affect this title at all. There is nothing more common in abstracting than to get out and acquire quit-claim deeds. Our first person is yet to be learned of, whose title was weakened or lost thereby.

The appellants certainly beg the question and they go back into the will of Mrs. Hearn, for this will neither affects them nor their privies. The construction of the will is wholly a matter between this appellee and the other beneficiaries under the will. Strangers are not concerned therein.

The appellants filed this petition and took the burden of showing title in themselves to the undivided interest involved, but they have failed to do so, and it avails them nothing to go into questions concerning only Mrs. Whittaker and other people.

There is not a particle of proof in this evidence that the appellants had ever seen or heard of the quit-claim deed about which their counsel writes in his brief; nor is it shown by this record that the appellants had ever seen or heard of the will of Mrs. Hearn about which their counsel now recites in his brief.

The learned counsel states in his brief that the appellee had recognized certain conditions, but this avails him nothing, for nothing in this record intimates that these appellants have ever been misled by her or any conduct of hers or that they had ever been misled by any recital of the will of Mrs. Hearn or by the quit-claim deed; and therefore, no estoppel can be availed of.

We submit that the findings of the learned chancellor on this record should be confirmed.

OPINION

SMITH, C. J.

The appellants exhibited their bill in the court below against the appellee, alleging that they and the appellee are tenants...