Singleton v. Gordon, 2254

• Decision Date: 21 December 1943
• Docket Number: 2254
• Citation: 60 Wyo. 26,144 P.2d 138
• Parties: LEONARD E. SINGLETON, Plaintiff in Error. v. MIRIAM GORDON, MELVIN SINGLETON, GEORGE SINGLETON, HELEN SINGLETON, and MAY M. MAXWELL. Defendants in Error
• Court: Wyoming Supreme Court

144 P.2d 138

60 Wyo. 26

LEONARD E. SINGLETON, Plaintiff in Error. v. MIRIAM GORDON, MELVIN SINGLETON, GEORGE SINGLETON, HELEN SINGLETON, and MAY M. MAXWELL. Defendants in Error

No. 2254

Supreme Court of Wyoming

December 21, 1943

ERROR to District Court, Natrona County, C. D. MURANE, Judge.

Action by Leonard E. Singleton against Miriam Gordon and others for a declaratory judgment determining the parties' rights in certain land. To review the judgment entered, plaintiff brings error.

Reversed and remanded, with directions.

Reversed.

D. W Ogilbee, of Casper, for plaintiff in error.

POINTS OF COUNSEL FOR PLAINTIFF IN ERROR.

The grantees in every deed of a present interest must be named and these grantees, if designated in general terms rather than by name, must be designated by apt words. The term "heirs" is not a designation of particular persons but includes all of the heritable blood. Deeds have been held void for uncertainty because of the grantees being described as "the heirs of a named person then living." Duffield v. Duffield, 168 N.E. 673, Annotated Cases 1916 D- 859; Booker v. Tarwater, 37 N.W. 979; Heath v. Hewett, 27 N.E. 959, 13 LRS 46.

The deed is ineffective to carry an estate to the heirs of Leonard E. Singleton. 18 C. J. 159, note 86; Johnson v Calvert, 159 N.W. 78; Campbell v. Everhart, 52 S.E. 201.

It is a well established rule that a deed can be made only to grantees in existence or living at the time of the execution of the deed. A deed may be made to the heirs of a dead person if it can be shown who is intended, but a deed to the heirs of a living person without specifying their names is held to be void, and this would be especially true in a case where the heirs of the living are yet unborn. Vinyard v Heard, 167 S.W. 22.

A deed must give the names of the heirs where the conveyance is to the heirs of the living person named. Booker v. Tarwater, 37 N.E. 979.

If the deed is what it purports to be, that it, a conveyance of a present interest, the designation of grantees as heirs of a living person is insufficient; if the deed is a conveyance of a future interest the grantees might include persons yet unborn. "Heirs" has a much wider meaning than "children" or "issue." Walker v. Walker, 118 N.E. 1014; Drake v. Drake, 32 N.E. 114; Cochran v. Cochran, 17 A. 981.

The principle of the rule in Shelley's case is of far wider application than is the rule itself. The rule, as stated by Coke, is that "when the ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such cases the "heirs" are words of limitation of the estate and are not words of purchase." The "Rule" was adopted in this state as a part of the common law.

Words of inheritance are not necessary to pass a fee simple estate in this jurisdiction. Section 97-110 W. R. S. 1931.

A description of the heirs as "surviving" or "remaining" or "living at that time" or a provision for equal disposition, or that the property shall not be subject to the debts, contracts or liabilities of the first taker, do not alter the significance of the word "heirs" standing alone, and cause a remainder to vest in such heirs, rather than permitting a fee simple to vest in the "primarily named grantee." Price v. Griffin, 64 S.E. 372; Davenport v. Eskew, 48 S.E. 223; Browning v. Hoover, 78 S.E. 521.

The modern rule is that in the construction of deeds the intent of the parties when ascertained will prevail over all technical rules of construction. 18 C. J. p. 252, Sec. 197, note 22.

Where conveyance is by way of gift or voluntary settlement, the same rules are applicable as in the case of wills. 18 C. J., 252, notes 26 and 27. Windham v. Howell, 59 S.E. 852. S. E. & H. L. Shepherd Co. v. Shibles, 61 A. 700.

The Court will lean to a construction speedily vesting the estate. Stansbury v. First M. E. Church, 154 P. 887.

Jeremiah F. Mahoney, of Casper for defendant in error, May M. Maxwell.

POINTS OF COUNSEL FOR DEFENDANT IN ERROR

The deed of February 3rd, 1938 may be considered as granting a fee upon conditional limitations. McBride v. Gin Co. 152 S.W. 1135; Roberts v. Dogey, 119 N.E. 910; Patton on Titles, Sec. 117 and Cases cited; 21 C. J. Sections 41 and 42, pages 930-931.

Such deeds are strictly construed and doubts are resolved against such construction or interpretation as to vest a fee upon conditional limitations. Patton on Titles, Sec. 118, note 77 and cases cited.

A condition which is inconsistent with or destructive of the estate granted is inoperative because of invalidity of the condition. Patton on Titles, Sec. 118, note 85; Case v. Dwire, 15 N.W. 265.

See Patton Titles, Chap. 5, Sections 111 to 150 inclusive for statement in regard to qualified or defeasible Fees; conditional limitations and construction of clauses imposing conditions.

Conditional limitations were not recognized at common law but were created only under the statute of uses. 21 C. J. 931; Statler v. Doyle, 100 N.E. 959.

BLUME, Justice. KIMBALL, C. J., and RINER, J. concur.

OPINION

BLUME, Justice.

This is an action for a declaratory judgment for the purpose of declaring the rights of the parties in and to the West Half (W 1/2) of Lots numbered One (1) and Two (2), in Block numbered One Hundred Twenty-one (121), of the City of Casper, Wyoming. None of the parties was satisfied with the judgment herein. The facts are substantially as follows:

The defendant, Miriam Gordon, is the mother of the plaintiff, Leonard E. Singleton. Helen Singleton is the wife of the plaintiff and has never lived in the State. Melvin Singleton and George Singleton are children of the plaintiff and his wife. May M. Maxwell is the purchaser of the premises herein involved as hereinafter mentioned. On February 3, 1938, the defendant, Miriam Gordon, being then owner of the property herein involved, subject to a life estate of Roderick Gordon, her husband, gave a deed to the property, for and in consideration of one dollar and other good and valuable considerations. The deed is the usual statutory short form warranty deed but with special provisions, and reads as follows:

"Miriam Gordon, wife of Roderick Gordon, grantor, of Natrona County, and State of Wyoming, for and in consideration of One Dollar ($ 1.00) and other good and valuable consideration, receipt whereof is hereby acknowledged, conveys and warrants against her own acts but upon the conditions herein expressed to Leonard E. Singleton, grantee of McCone County and State of Montana, and share and share alike to the then living heirs of said primarily named grantee if he is deceased upon the date of death of the survivor of said Miriam Gordon and said Roderick Gordon, the following described real estate situate in Natrona County and State of Wyoming, hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of the State, to-wit: (description of property)

Grantor certifies that the property so conveyed has been her sole and separate estate since deed thereto to her from her said husband. Dated July 20, 1936, recorded in said County Clerk's office July 22, 1936. Grantor reserves during her lifetime and that of her said husband, if he survives her, the right to exclusive possession of the property aforesaid and all values accruing therefrom. This instrument is a present conveyance of legal title with postponement of possessory rights only and is not testamentary in character. (Italics are ours)

On May 17, 1941, the defendant, Miriam Gordon, for and in consideration of one dollar and other valuable consideration, gave to the plaintiff, Leonard E. Singleton, her warranty deed conveying to the plaintiff the absolute title to the property herein involved. This deed contains the following recitals:

"It is covenanted and agreed by and between the parties hereto that the grantor holds a life estate in and to the said premises and that this deed is given for the purpose of conveying to the grantee the said life estate and to merge and extinguish the said life estate in the reversion and inheritance of said premises and that the said grantee herein shall hereafter hold said premises free of the burden of the life estate of the grantor the same as might be effected by the sometimes used more formal clause which reads as follows: 'To have and to hold the said property unto the said Leonard E. Singleton, his heirs and assigns subject to the estate for life of the said Miriam Gordon therein, to the intent that the same may merge and be extinguished in the reversion and the inheritance of said premises, and that the said Leonard E. Singleton thereafter may be seized of or entitled to the fee simple and inheritance in possession thereof.'"

Roderick Gordon, mentioned in the deed first above set out, died on April 18, 1941, so that his interest in the property ceased at that time. Subsequent to the execution of the second deed above mentioned the plaintiff, Leonard E. Singleton, entered into a contract for the sale of the property herein involved to the defendant, May M. Maxwell. After examination of the title, the purchaser refused to consummate the transaction without first obtaining judicial determination and declaration that the seller has a good and lawful right to convey the property free and clear of any claims of the defendants herein, claiming that the title to the property is in doubt. Thereupon, the plaintiff, Leonard E. Singleton, brought this action for a declaratory judgment for the purpose of having the meaning of the deeds hereinabove mentioned construed and to have the legal effect thereof and the extent of the interest of the plaintiff in...