Salters v. Salters
| Decision Date | 22 December 1989 |
| Citation | 555 So.2d 169 |
| Parties | James Comer SALTERS v. Johnny Hoyt SALTERS, a/k/a Johnny Holt Salters, and Linda Irving Harbin, a/k/a Linda Irvin Harbin. 88-1343. |
| Court | Alabama Supreme Court |
James T. Tatum, Jr. of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellant.
J. Allen Brinkley of Brinkley, Ford, Chesnut & Aldridge, Huntsville, for appellees.
This appeal involves the construction to be given to a granting clause in a written instrument.
Johnny Salters and Linda Harbin filed this action against James Salters, their brother, for the sale of 791.5 acres of real estate and a division of the proceeds. The plaintiffs alleged each of the three parties owned an undivided one-third interest in the land as the result of an instrument executed by their parents that purported to be a deed. James answered with the contention that the property had passed by their father's will and not by that earlier instrument and that under the will he took a much greater interest in the land. The trial court entered a partial summary judgment in favor of the plaintiffs and held that the land had passed by deed and that each party owned a one-third interest. The judge then made that judgment final under Rule 54(b), A.R.Civ.P., but has reserved ruling on whether the land should be sold for a division of the proceeds until this Court has ruled in this appeal challenging his determination of ownership.
The only issue is whether the document constituted a conveyance of the property to the grantors for life and then to all three children equally, or whether it simply constituted a conveyance of the property from the grantors to themselves so that the land remained a part of the grantors' estates upon their deaths.
The document in question states in the granting clause:
The habendum clause of the document reads:
James contends that the granting clause and the habendum clause conflict and that the granting clause prevails over all other clauses in the event of a conflict, relying on Hanners v. Hanners, 262 Ala. 143, 77 So.2d 484 (1955).
This Court has held that "the granting clause in a deed determines the interest conveyed, and unless there is repugnancy, obscurity or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the habendum, too, if that clause is contradictory or repugnant to it." Slaten v. Loyd, 282 Ala. 485, 487-88, 213 So.2d 219, 220-21 (1968). In the present case, the granting clause clearly and unambiguously conveys an interest only to the grantors. It must be given effect over the habendum clause, because the habendum clause is contradictory or repugnant to the granting clause.
Because of the conflict between the granting and habendum clauses, a question of fact is created as to the intention of the grantors when this instrument was executed. This position is strengthened by the fact that one of the grantors, James Virgil Salters, subsequently executed a will purporting to dispose of the same property in a different manner. 1
The appellees rely on Graves v. Wheeler, 180 Ala. 412, 61 So. 341 (1912). Graves is clearly distinguishable from the present case. In Graves, the grantor conveyed a present interest in the granting clause to his wife for life with the remainder to the grantor's children upon her death. Here no present interest was conveyed to the grantors' children in the granting clause; rather, the grantors conveyed the property to themselves in the granting clause and in the habendum clause to their children upon the grantors' death. This is clearly a future conveyance of an interest that passes, if at all, at the death of the grantors--a testamentary disposition and not a "deed."
For these reasons, the summary judgment was improper. The judgment of the trial court is, therefore, due to be reversed and the cause remanded.
REVERSED AND REMANDED.
The majority holds that the granting clause in the deed in question "clearly and unambiguously conveys an interest only to grantors" and that it "must be given effect over the habendum clause, because the habendum clause is contradictory or repugnant to the granting clause in the deed." The majority holds that "no present interest was conveyed to the grantors' children in the granting clause; rather, the grantors conveyed the property to themselves in the granting clause and in the habendum clause to their children upon the grantors' death," and that "[t]his is clearly a future conveyance of an interest that passes, if at all, at the death of the grantors--a testamentary disposition and not a deed." (Emphasis added.)
In my opinion, the subject instrument is a deed that creates a life estate in the subject property to the grantors, with a remainder interest in their children, "upon the death of both grantees."
While the instrument could have been more artfully drawn, it is clear to me that the grantors here intended to create a life estate in themselves and a remainder interest in their children upon the happening of a certain contingency--"the death of both grantees." It is plain to me that the grantors intended this instrument to have this effect. The instrument was duly recorded in the deed records, and I believe the trial court correctly entered summary judgment.
If a document is unambiguous, its construction and legal effect are questions of law that may be decided, under appropriate circumstances, by summary judgment, Wheeler v. First Ala. Bank of Birmingham, 364 So.2d 1190, 1194 (Ala.1978), and it is the duty of the court to reconcile the terms of the instrument, if that may reasonably be done, to avoid a repugnancy in its provisions. Wilkins v. Ferguson, 294 Ala. 25, 310 So.2d 879 (1975).
The deed in question here states:
"To have and to hold the same for and during the natural life of both grantees, and upon the death of both grantees, the property will descend to their children, Johnny Holt Salters, Linda Irving Harbin, and James Comer Salters...."
James contends that the granting clause before the property description and the habendum after the description conflict, and that the granting clause in a deed prevails over all other clauses in the event of a conflict. If the intention of the grantors cannot be ascertained from the instrument itself,...
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