Priest v. Ernest W. Ball & Associates Inc.

• Decision Date: 19 November 2010
• Docket Number: 1091334.
• Citation: 62 So.3d 1013
• Parties: Christopher M. PRIEST, as guardian ad litem for the unknown heirs of William Buxton and Judy Buxtonv.ERNEST W. BALL & ASSOCIATES, INC., et al.
• Court: Alabama Supreme Court

62 So.3d 1013

Christopher M. PRIEST, as guardian ad litem for the unknown heirs of William Buxton and Judy Buxton

v.ERNEST W. BALL & ASSOCIATES, INC., et al.

1091334.

Supreme Court of Alabama.

Nov. 19, 2010.

Christopher M. Priest of Blackburn, Maloney & Schuppert, LLC, Decatur, for appellant.J. Timothy Kyle of Russell, Straub & Kyle, Decatur, for appellees William Buxton and Judy Buxton.

BOLIN, Justice.

This appeal is from a judgment in a declaratory-judgment action seeking an interpretation and declaration of the legal effect of certain language in a deed.

Facts and Procedural History

On November 6, 2008, William Buxton and Judy Buxton filed a complaint for a judgment declaring certain language in a deed conveying real property to them to be a conveyance of the property in fee simple with a right of survivorship. The Buxtons brought the action against the law firm Ernest W. Ball & Associates, Inc. (hereinafter “Ball”), that had prepared the deed. The deed was attached to the complaint and states as follows:

“KNOW ALL MEN BY THESE PRESENTS, that for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration to the undersigned Grantors, in hand paid by the Grantees herein, the receipt whereof is hereby acknowledged, THOMAS F. LOPPNOW AND WIFE, RONNA L. LOPPNOW, herein referred to as Grantors, do hereby grant, bargain, sell and convey unto WILLIAM BUXTON AND JUDY BUXTON, HUSBAND AND WIFE, herein referred to as Grantees, for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion, the following described real estate hereinafter the ‘Premises', situated in MORGAN County, Alabama, to-wit

“[Description of the property]

“THERE ARE EXCEPTED FROM THE WARRANTIES OF THIS DEED ALL EASEMENTS, RESTRICTIONS OF RECORD, AND CURRENT AD VALOREM TAXES.

“AND SAID GRANTORS DO, for themselves and their heirs and assigns, covenant with said Grantees, their heirs and assigns that they are lawfully seized in fee simple of said premises; that it is free from all encumbrances, except as otherwise noted above, that they have a good right to sell and convey the said premises; that they will warrant and defend the same unto the said Grantees, their heirs, executors and assigns forever, against the lawful claims of said Grantors and all persons claiming by and through said Grantors, but not against the claims of any others, except for current ad valorem taxes, restrictions, easements, ways and building setback lines applicable to the above described property, if any, as shown of record in said Probate Office.”

Ball answered and asserted several affirmative defenses. On January 7, 2009, the Buxtons filed a motion for a summary judgment. On March 24, 2009, the Buxtons filed a motion to add Blake Horton and Devon Horton ¹ as defendants because their interests might be adversely affected by a judgment and to appoint a guardian ad litem to represent any unknown heirs of the Buxtons. On May 1, 2009, the trial court added the Hortons as defendants and appointed Christopher M. Priest as guardian ad litem. On May 18, 2009, Priest filed an answer. On September 28, 2009, Priest filed a response to the Buxtons' summary-judgment motion. On May 25, 2010, Ernest Ball, a principal in Ball, filed an affidavit stating:

“I am an attorney and the owner of the law firm, Ernest W. Ball & Associates, Inc. On May 27, 2003, my firm prepared a deed in which property was purchased by the [Buxtons]. The deed was recorded at Book 2003, Page 3781 in the Probate Office of Morgan County, Alabama on May 29, 2003.

“The deed stated that the property was conveyed to the [Buxtons] ‘for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion.’ (hereinafter ‘the Subject Language’). The Subject Language is ambiguous and not very clear so in at least 75 deeds in Morgan County alone, the language has been construed to convey a fee simple interest as evidence of the deed being overwritten.”

On May 26, 2010, the trial court entered a summary judgment in favor of the Buxtons, holding, in pertinent part, as follows:

“On May 27, 2003, Ernest W. Ball & Associates, Inc. prepared a deed in which property was purchased by the [Buxtons]. The deed was recorded in the Probate Office of Morgan County, Alabama on May 29, 2003. The deed stated that the property was conveyed to the [Buxtons] ‘for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion.’ This action is to determine whether the language contained in the deed was ambiguous, and, as such, whether the ambiguity was to be resolved in favor of fee simple, or whether the language clearly created a lesser estate.

“Section 35–4–2 of the Code of Alabama (1975), as amended, states, ‘[e]very estate in lands is to be taken as fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.’ In Hacker v. Carlisle, the Supreme Court of Alabama interpreted the statute to say ‘[u]nder this statute, the presumption is, and all doubts are resolved in the favor of a fee simple estate.’ 388 So.2d 947, 950 ( [Ala.] 1980). See also Moss v. Williams, 822 So.2d 392, 396–397 ( [Ala.] 2001). In Windham v. Henderson, the Supreme Court applied the statute by saying, ‘[t]he intention to create a lesser estate must clearly appear, for the courts will not construe a grantor's words as conveying a lesser estate if clearly a different meaning can be given them.’ 658 So.2d 431, 433 [ (Ala.1995) ].

“In Hacker, the Supreme Court noted numerous cases where deeds used language such as ‘lifetime’ or ‘at his death,’ and the Court found the language insufficient to overcome the presumption. Hacker at 951. The Court further stated ‘[a]nd the language “but it is to go to his heirs” indicates merely words of limitation or inheritance.’ Id.

“Further, in Hacker, the Court examined an Oregon Supreme Court case which interpreted deed language pursuant to a statutory provision similar to Alabama Code Section 35–4–2 (1975), as amended. The Alabama Supreme Court stated as follows:

“ ‘The Oregon court also noted that the word “heirs” in the clause merely designated the person who would by statute succeed to the property in case of intestacy. Rejecting the argument that the language created a life estate with remainder, the [Oregon] court stated:

“ ‘ “Where there is a doubt as to whether the grantor intended to convey an estate in fee simple or a life estate, the doubt should be resolved in favor of the grantee and the greater estate would pass. This rule of construction is in keeping with the spirit of the statute....” ’ “ Hacker at 951–952.

“Pursuant to Section 35–4–3 of the Code of Alabama, in the present action, the language contained in the deed is ambiguous, and, as such, shall be construed as granting a fee simple estate.

“Having reviewed the pleadings, the [Buxtons'] Motion for Summary Judgment and supporting evidence, the Court finds that there are no genuine issues of material disputed fact and that the [Buxtons] are entitled as a matter of law to the requested relief. It is, therefore, ORDERED, ADJUDGED, and DECREED by the Court that the deed language used by Ernest W. Ball, ‘for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion’ is ambiguous and unclear and does not clearly state that a less estate was intended. Therefore pursuant to Alabama Code Section 35–4–2 (1975), as amended, the [Buxtons'] interest in said land is in fee simple.”

The trial court made the summary-judgment order final pursuant to Rule 54(b), Ala. R. Civ. P. Priest timely appealed.

Standard of Review

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion....’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact—“evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12–21–12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’

“ Capital Alliance Ins. Co. v. Thorough–Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Alabama Elec. Coop. v. Bailey's Constr. Co., 950 So.2d 280, 283 (Ala.2006).

Discussion

Section 35–4–2, Ala.Code 1975, provides: “Every estate in lands is to be taken in fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.” The issue before this Court is whether the deed in question clearly establishes that an estate lesser than fee simple, i.e., a life estate, was created, or whether an ambiguity was present such that § 35–4–2 mandates that the Buxtons took a fee-simple estate in the property.

In Barnett v. Estate of Anderson, 966 So.2d 915, 918 (Ala.2007), this...