Russell v. Federal Land Bank

• Decision Date: 01 November 1937
• Docket Number: 32786
• Court: Mississippi Supreme Court
• Parties: RUSSELL et al. v. FEDERAL LAND BANK et al

176 So. 737

180 Miss. 55

RUSSELL et al. v. FEDERAL LAND BANK et al

No. 32786

Supreme Court of Mississippi

November 1, 1937

Division B

Suggestion Of Error Overruled December 13, 1937.

Appeal from the chancery court of Jasper county HON. A. B. AMIS SR., Chancellor.

Suit by the Federal Land Bank and others against S.D. Russell and others. From an adverse decree, defendants appeal. Decree set aside, and cause remanded with directions.

Reversed and remanded.

J. M. Travis, of Meridian, and R. L. Bullard, of Hattiesburg, for appellants.

The court erred in holding that Mrs. Betty McCantz Russell, widow of S.D. Russell, Sr., was an heir and inherited an interest in the land conveyed by A. Russell on November 15, 1887, to S. D Russell, Sr., for life, the remainder to his heirs.

It is a well settled rule of law in this state, as well as the other slates of the Union, that the intention of the parties to a contract must be drawn from the words of the whole contract and if in view of the language used it is clear and explicit the court must give effect to it unless in contravention of public policy, though, if the language is doubtful, the court will look to surroundings of the parties and the construction placed upon the contract by them during its existence to learn their intentions.

Harris v. Townsend, 58 So. 529; Yazoo & M. V. R. Co. v. First National Bank of Vicksburg, 80 So. 382, 119 Miss. 59.

Appellants say that under Revised Code of Mississippi, 1880, under title of "Land and Conveyances" on page 347, section 1201, the following statute was in force at the time of the execution of the said deed now being considered in this ease: "The Rule in Shelley's Case Abolished--Conveyance or devise of land or other property to any person for life, with remainder to his heirs or heirs of his body, shall be held to grant an estate for life in such person with remainder to his heirs or heirs of his body, who shall take as purchasers by virtue of the remainder so limited to them."

Under this section of law, the appellants contend that under the deed of conveyance before the court, after the death of S.D. Russell, Sr., the grantee in the said deed of conveyance, the remaindermen received title under said deed of conveyance as purchasers and that the law of descent and distribution of the laws of our state was not involved. It will be noticed from the phraseology of the deed of conveyance in question that every item and every paragraph of said deed of conveyance was in plain and unambiguous language. In substance, this deed conveyed to S.D. Russell, Sr., a life estate with certain reservations and restrictions placed upon said life estate, and at his death to go to his heirs.

The appellants contend that this kind of conveyance is a valid, legal and binding conveyance; that S.D. Russell, Sr., grantee, took a life estate, subject to the conditions and restrictions therein mentioned, and at his death to go to his heirs in fee simple.

Stigler v. Shurlds, 131 Miss. 648, 95 So. 635; Middlesex Banking Co. v. Field, 37 So. 139.

The Supreme Court of Mississippi has construed many deeds of conveyance and have passed upon the question of heirs in a number of cases.

Boone v. Baird, 44 So. 929; Scottish-American Mortgage Co. v. Buckley, 33 So. 416; Davenport v. Collins, 48 So. 733; Rose v. Rambo, 82 So. 149; Deason v. Stone, 52 So. 307; Wilson v. Alston, 25 So. 225; Smith v. Bachus, 70 So. 262; Findley v. Hill, 32 So. 497; Castleberry v. Stringer, 57 So. 849.

The word "heirs" has a fixed legal meaning, which must be given it when used in a will, unless controlled by the context, but it may also be used in a nontechnical sense, and, when the context requires that it be so construed to effectuate testator's intent, it may be given the meaning of "children."

Snider v. Snider, 42 N.Y.S. 613.

It is settled by authority that a widow is neither next of kin nor heir.

Tillman v. Davis, 95 N.Y. 17; Murdock v. Ward, 67 N.Y. 387; Keteltas v. Ketaltas, 72 N.Y. 312.

A widow is not "heir" to her husband, nor is a widower "heir" to his wife, within the technical meaning of the term.

Johnson v. Knight of Honor, 53 Ark. 255, 13 S.W. 794, 8 L. R. A. 732; Brown v. Harmon, 73 Ind. 412; Braun v. Mathieson, 139 Iowa 409, 116 N.W. 789; Blackman v. Wadsworth, 65 Iowa 80, 21 N.W. 190; Overdieck's Will, 50 Iowa 244; Bailey v. Bailey, 25 Mich. 184; Murdock v. Ward, 67 N.Y. 387; Henderson v. Henderson, 46 N.C. 221; Phillips v. Carpenter, 79 Iowa 600, 44 N.W. 898.

The word "heirs" may be construed as meaning children, where an intention to that effect is clearly shown by the instrument.

Southern R. Co. v. Hays, 150 Ala. 212, 43 So. 487; Findley v. Hill, 133 Ala. 229, 32 So. 497; Edins v. Murphree, 142 Ala. 617, 38 So. 639; Williams v. McConico, 36 Ala. 22; McDill v. Meyer, 94 Ark. 615, 128 S.W. 364; Henderson v. Sawyer, 99 Ga. 234, 25 S.E. 312; Tinder v. Tinder, 131 Ind. 381, 30 N.E. 1077; Hunt v. Hunt, 154 Ky. 679, 159 S.W. 528; Howard v. Sebastian, 143 Ky. 237, 136, S.W. 226; Tanner v. Ellis, 127 S.W. 995; Tucker v. Tucker, 78 Ky. 503; Fullagar v. Stockdale, 138 Mich. 363, 101 N.W. 576; Eckle v. Ryland, 256, Mo. 424, 165 S.W. 1035; Garrett v. Wiltse, 252 Mo. 699, 161 S.W. 694; Cornelius v. Smith, 55 Mo. 528; Heath v. Hewitt, 127 N.Y. 166, 27 N.E. 959, 24 Am. St. Rep. 438, 13 L. R. A. 46; Darrah v. Darrah, 202 Pa. 492, 52 A. 183; Reeves v. Cook, 71. S. C. 275, 51 S.E. 93; Read v. Fite, 8 Humphr. 328; Hickman v. Quinn, 6 Yerg. 96; Roberson v. Wampter, 104 Va. 380, 51 S.E. 835, 1 L. R. A. (N. S.) 318; Phillips v. Carpenter, 44 N.W. 898; Waller v. Martin, 61 S.W. 73.

In view of all the above cited authority from the different states of the Union in construing the deed in question, it is certain that the property in the deed, at the death of S.D. Russell, Sr., did not descend under the laws of descent and distribution of the State of Mississippi, but went to the remaindermen as heirs by purchase and in no instance did any part of the lands conveyed in the said deed become any part of the estate of S.D. Russell, Sr., who died intestate on April 8, 1919.

The appellants contend in this case that the widow was not an heir and have relied upon the authority heretofore submitted to the court for consideration in this case. This is a very important part of the law suit in this case to determine whether or not the appellee received any interest in the property covered in this deed. The court below held that S.D. Russell, appellant, was entitled to one-fourth interest in this property and that he inherited and became in possession of another one-fourth interest in fee from his mother, widow of S.D. Russell, Sr. The appellants, therefore, contend that the court below was in error in holding that S.D. Russell, appellant, received a one-fourth interest in the property under this deed from his mother, the widow of S.D. Russell, Sr.

Under the deed of A. Russell to S.D. Russell, Sr., for heir life with remainder to his heirs, the remaindermen took as purchasers instead of by descent and distribution and it follows that it was impossible for the lands covered in the A. Russell deed to become any part of the estate of S.D. Russell, Sr., at the time of his death, and the court erred in so holding.

The appellants contend in this law suit that the courts of the land construe deeds of conveyance and wills under the same principles of law and the law with reference to construction of land deeds is the same as construction of wills.

Yazoo & M. V. R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393.

The court below held that the clauses in this deed of conveyance were a general restraint of alienation and that the said purported clauses in said deed of conveyance were null and void and that S.D. Russell, appellant in this case, could convey this property at any time he got ready. The appellants in this case contend that all of the conditions, restrictions, limitations and restraint of alienation of the property conveyed in the deed of conveyance were legal and valid and binding under the law of this state, arid the appellants will now submit to the court authority in support of the validity of the restraint of alienation in the deed of conveyance for construction before the court.

Leigh v. Harrison, 69 Miss. 923, 11 So. 604; Crawford v. Solomon, 95 So. 686, 131 Miss. 792; Bratton v. Graham, 111 So. 353, 146 Miss. 246; Libby v. Winston, 93 So. 631; Lewis v. Lewis, 76 Conn. 586; Camp v. Cleary, 76 Va. 170.

The deed of G. L. Russell and R. A. Russell to S.D. Russell, appellant, was filed for record on September 22, 1921, in the Chancery Clerk's office of the first district of Jasper County, Mississippi, and the appellee, upon the recording of said deed, was charged with notice of the existence and the contents of said deed and, under the law, where deeds of conveyance are recorded they opcreate as constructive notice as to all subsequent purchasers or encumbrances thereafter.

Sowell v. Rankin, 120 Miss. 158, 82 So. 317.

Notwithstanding the fact that the appellee bank had notice by record of this deed, it also had its own abstract of title showing the condition that existed with reference to restraint of alienation of the property and on account of its constructive notice and actual notice of the kind of title it was getting from appellant Russell, the appellants contend that the appellee bank is now estopped from claiming any title, right or interest of any kind in and to all of the property which was a part of the deed of conveyance from G. L. Russell and R. A. Russell to S.D. Russell, appellant, and because of said estoppel it had no right under the law to foreclose on said deed of trust or mortgage, nor did the court below have any right or...