Mays v. Burleson

• Decision Date: 23 January 1913
• Citation: 61 So. 75,180 Ala. 396
• Parties: MAYS v. BURLESON.
• Court: Alabama Supreme Court

61 So. 75

180 Ala. 396

MAYS v. BURLESON.

Supreme Court of Alabama

January 23, 1913

Rehearing Denied Feb. 14, 1913

Appeal from Circuit Court, Marion County; Travis Williams, Special Judge.

Ejectment by Martha E. Mays against J.D. Burleson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

It appears that the land involved in this suit was owned by Seth Bottoms, and that both parties trace title back to him. Seth Bottoms was the father of plaintiff, and died on the 25th day of June, 1904, leaving three children, Martha E. Mays, the plaintiff, Prudence E. Frederick, and Thomas Bottoms. Seth Bottoms made a will, and after making the will executed a deed to Martha E. Mays, conveying the land involved in this suit, but reserving therein a life estate. The deed is in form a warranty, and the condition in the deed is as follows "The conditions of the above deed are such that I, Seth Bottoms, am to retain full possession and control of the above lands" during his life; after his death, the lands to be the property of Martha E. Mays and her heirs, provided "that I do not sell said land during my lifetime, in such event this deed is to be null and void." This deed was excluded by the court, whereupon the plaintiff then offered in evidence the record of the will of Seth Bottoms which conveyed to Martha E. Bottoms and Prudence Bottoms, now Frederick, the personal property equally, and to Prudence Bottoms, the lands belonging to the Jesse Weatherly place "and to Martha Bottoms the lands I now live on. If Prudence Bottoms should decease without leaving any lawful heirs, Martha Bottoms shall have all my estate. If Martha Bottoms should decease without leaving any lawful heirs, then Prudence Bottoms shall have all my estate, but in the event my wife should outlive me, she shall have full control of all my estate until her death, but shall not sell any of my estate, or any part thereof, and after her death, the estate shall be divided, as I have above devised." The deed from Seth Bottoms to Martha Mays above set out was recorded June 1, 1904; it having been executed August 13, 1903. Prudence Bottoms married Frederick, and died on December 23 1910. Previous to her death, on the 16th of January, 1905, Prudence Frederick and her husband conveyed the lands sued for to the defendant J.D. Burleson. It appeared that Seth Bottoms died on or about the 25th day of May, 1904. On this state of the evidence the court gave the affirmative charge for the defendant.

R.W. Quinn, of Hamilton, and Kirk, Carmichael & Rather, of Tuscumbia, for appellant.

E.B. & K.V. Fite, of Hamilton, for appellee.

ANDERSON J.

"Whether an instrument is testamentary, or a conveyance operating to create estates and rights upon its execution, is often a question of great difficulty. When it can have no effect as a deed, the court is inclined to regard it as a will, if in that character effect can be given to the evident intention of the maker. The controlling question is whether the makee intended that an estate or interest should vest before his death. If such be the intention, and the instrument can reasonably thus operate, it will be upheld as a deed. While the estate conveyed must vest upon the execution of the instrument, the passing of the immediate rights of possession and enjoyment is not essential to constitute a deed; and the reservation of a life estate does not of itself make it a will." Trawick v. Davis, 85 Ala. 342, 5 So. 83; Hall v. Burkham, 59 Ala. 349; Jordan v. Jordan, 65 Ala. 301. The difference between the two, however, is apparent.

Immediately upon the execution of the deed, the remainder in fee vests, though possession and enjoyment is postponed. By no act of the grantor can it be revoked, annulled, defeated, or impaired.

The execution of the will passes no estate, vests no title creates no interest or right. All are dependent upon the death of the testator, in whom resides the absolute unqualified power of revocation, though it is not reserved or expressed. The grantor, however, can reserve the power in a deed to revoke same or to divest a title thereby vested upon legitimate conditions reserved or provided for in the deed. "Deeds, once executed are irrevocable, unless such...