Prudential Ins. Co. of America v. Karr, 8 Div. 87.

• Court: Supreme Court of Alabama
• Citation: 3 So.2d 409,241 Ala. 525
• Docket Number: 8 Div. 87.
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. KARR et al.
• Decision Date: 30 June 1941

3 So.2d 409

241 Ala. 525

PRUDENTIAL INS. CO. OF AMERICA
v.
KARR et al.

8 Div. 87.

Supreme Court of Alabama

June 30, 1941

[241 Ala. 526] Appeal from Circuit Court, Marshall County; A.E. Hawkins, Judge.

Suit in equity by Irvin Karr, a minor, and others against the Prudential Insurance Company of America and others for sale of lands for division among tenants in common. From a decree overruling named defendant's demurrers to the bill, such defendant appeals.

Reversed and remanded. [3 So.2d 410]

Street & Orr, of Guntersville, for appellant.

[241 Ala. 527] Scruggs & Creel, of Guntersville, for appellees.

BOULDIN, Justice.

The bill was filed for the sale of lands for division between tenants in common.

Demurrers by appellant challenged the title of complainants under the averments of the bill. The appeal is from a decree overruling these demurrers.

The question of title turns on the construction of a deed made exhibit to the bill. The deed in question was executed in 1934 by several grantors, sole heirs at law of C.A. Martin, deceased. Their ownership is not questioned; neither is the fact that the deed passed a fee-simple title. The question is: Who took as grantees under the deed?

The pertinent features of the deed are:

"That for and in consideration of Two Thousand Dollars" to the grantors "in hand paid by J.B. Karr the receipt whereof is acknowledged we the said above named grantors do grant, bargain, sell and convey unto the said J.B. Karr the following described real estate, to-wit: * * *

"To have and to hold, to the said J.B. Karr and wife and their two youngest heirs and assigns forever.

"And we do for us and for our heirs, executors and administrators covenant with the said J.B. Karr and wife and their two youngest heirs and assigns that we are lawfully seized in fee simple of said premises; and they are free from all incumbrances, and that we have a good right to sell and convey the same as aforesaid; that we will, and our heirs, executors and administrators shall, warrant and defend the same to the said J.B. Karr and wife and their two youngest heirs and assigns forever, against the lawful claims of all persons."

As a background for this deed the bill avers the following: At the time of its execution Lorena Karr was the wife of J.B. Karr. Both husband and wife had living children by former marriages. They had two children, Emma Nell Karr and Irvin Karr, by their present marriage. The wife, Lorena Karr, had acquired some property by a former husband, the proceeds whereof became a part of the purchase money for this land. Lorena Karr died after the purchase of this land. J.B. Karr, after her death, executed a mortgage thereon to appellant, Prudential Insurance Company of America, purporting to convey a fee-simple title, with covenants of warranty.

The bill was filed by Emma Nell (Karr) Collier and Irvin Karr.

The theory of the bill is that the deed from the Martins passed an undivided one-fourth...