Smith v. Buffington

• Decision Date: 23 November 1936
• Docket Number: 32409
• Citation: 176 Miss. 889,170 So. 816
• Court: Mississippi Supreme Court
• Parties: SMITH et. al. v. BUFFINGTON

170 So. 816

176 Miss. 889

SMITH et. al. v. BUFFINGTON

No. 32409

Supreme Court of Mississippi

November 23, 1936

Division B

WILLS.

Instrument reciting consideration of one dollar and love and affection and purporting to convey title to house and lot, but containing provision that deed should not take effect during lifetime of grantor but only on her death held "will" and not "deed," since instrument in form of deed not to become effective until death of maker is a will and not a deed.

HON. T P. GUYTON, Chancellor.

APPEAL from the chancery court of Lowndes county, HON. T. P. GUYTON, Chancellor.

Proceeding between Mrs. Dixie Smith and Charles Buffington and Mrs. Alice A. Buffington. From an adverse decree, Mrs. Dixie Smith and Charles Buffington appeal. Affirmed.

Affirmed.

Loving & Loving, of Columbus, for appellants.

The deed is based on a good consideration and the granting clause used in the deed is in the following words: "has granted bargained sold and conveyed and by these presents does grant bargain sell and convey to the party of the second part his heirs and assigns," etc.

It will be observed from these words that there is no reservation of a life estate, nor is there anything in this granting clause to indicate that the grantor expected or intended to do otherwise than to grant a present interest in this real estate, that the wording was the granting of an estate in praesenti, and if this is what the granting clause means and an estate in praesenti passed at the execution and delivery of the instrument, then the instrument would be a valid deed of conveyance.

As far as we have been able to find, no deed written in the terms in which this deed is written, has been passed on by this honorable court, in an action of this kind, but this honorable court has held many deeds that were not as emphatic in terms as this, to be deeds of conveyance and not instruments testamentary in character.

The last sentence in the deed in the habendum clause reads as follows: "Provided, nevertheless, that this deed shall not take effect or be of any force whatever during the lifetime of the said Alice A. Buffington, but immediately upon her death the same shall be of full force and effect." This is merely a clause in which she reserves unto herself, the possession of the property during her life, there is no reference whatever as to title in this sentence. It is a reservation of the life estate in the habendum clause, which this honorable court says can be done.

Hart v. Gardner, 74 Miss. 153, 20 So. 877; Johnson v. Seely, 139 Miss. 60, 103 So. 499.

We submit that the granting features of the deed in the case at bar in which reference to the granting of title, the vesting of title, and the warranty of title, are much stronger than in the cited case.

Wall v. Wall, 30 Miss, 91; Stubblefield v. Haywood, 123 Miss. 480, 86 So. 295.

The question presented is whether this instrument is a deed. It is ineptly drawn, but by careful consideration the conclusion is that it reserves to the grantors a life estate and until the death of the surviving of the grantors. It is settled in this state that the test is whether the instrument is to have effect as an instrument of conveyance at the time of its execution, though the enjoyment of the estate may be postponed to a fixed time, or it may become effective at the death of the grantor or grantors, or at any time in the future, whether the conveyance, or instrument, as such, is to take effect at or after death. And that it seems clear in construing all provisions together that the intention of the parties was to reserve a life estate in the grantors and to convey the remainder to the grantee, the grantee to come into possession, or use of the property at the death of the surviving grantor, and that the chancellor was in error in holding the deed invalid.

Stubblefield v. Haygood, 123 Miss. 480, 86 So. 295; Brinson v. Sandifer, 42 So. 89; Rogers v. Rogers, 43 So. 434.

Sturdivant & Holloman, of Columbus, for appellee.

We respectfully submit...