Spencer v. Robbins

• Citation: 5 N.E. 726,106 Ind. 580
• Decision Date: 23 March 1886
• Docket Number: 11,944
• Parties: Spencer et al. v. Robbins et al
• Court: Indiana Supreme Court

5 N.E. 726

106 Ind. 580

Spencer et al. v. Robbins et al

No. 11,944

Supreme Court of Indiana

March 23, 1886

Petition for a Rehearing Overruled June 3, 1886.

From the Sullivan Circuit Court.

Judgment is reversed, with costs.

W. S Maple, J. T. Hays, H. J. Hays, J. C. Briggs, J. W. Shelton and C. E. Barrett, for appellants.

J. S Bays, S. C. Coulson, J. T. Beasley and A. B. Williams, for appellees.

OPINION

Mitchell, J.

This was an action by Martha A. Spencer and others to have partition of certain real estate.

William M. and Anthony S. Robbins, who were summoned as defendants, appeared, and by a cross complaint asserted an absolute title to the whole estate of which partition was prayed in the complaint. They rested their right to the land on a deed of conveyance from Eliza Robbins, through whom the appellants claimed by inheritance. The prayer of the cross complainants was, that their title might be quieted. They had judgment accordingly.

The validity of the deed, by means of which the cross complainants prevailed in the court below, is made a question for consideration. This instrument was of the tenor following:

"This indenture witnesseth, that I, Eliza Robbins, of Sullivan county, in the State of Indiana, convey and warrant to William M. Robbins and Anthony S. Robbins of Sullivan county, in the State of Indiana, for natural love and affection and five dollars, the receipt whereof is hereby acknowledged, the following real estate in Sullivan county, in the State of Indiana, to wit: The east half of the northeast quarter and the southwest quarter of the northeast quarter of section 23, township seven (7) north, range nine (9) west, containing one hundred and twenty acres, as tenants in common, in the following proportions, to wit: To be equally divided between them at my decease, and after the payment of all my funeral and burial expenses by them fully settled; and they are to pay all taxes and other expenses of repairs and improvements on the same during my natural life, and then the title to vest in them absolutely. In witness whereof, the said Eliza Robbins has hereunto set her hand and seal this 28th day of April, 1869."

This paper was dated, signed and acknowledged, with the formalities of a deed. The insistence of counsel is, that this deed vested in the grantees no estate whatever which was to take effect during the lifetime of the grantor. It was, therefore, testamentary in its character, and not having been executed in conformity with the law governing the execution of wills, they contend that it is void. The premise granted, the conclusion insisted upon might well follow.

We entertain a different view upon the subject of the construction of the deed in question. Section 2927, R. S. 1881, provides that "Any conveyance of lands worded in substance as follows,--'A. B. conveys and warrants to C. D. [here describe the premises] for the sum of [here insert the consideration]'--the said conveyance being dated, and duly signed, sealed, and acknowledged by the grantor--shall be deemed and held to be a conveyance in fee simple to the grantee," etc.

The instrument under consideration contains none of the language or peculiarities of a will. It embodies all the requisites of a statutory deed, and plainly vests in the grantees an estate in fee simple, unless the recitals following the description of the land manifest a contrary intent. We do not think such an intent appears upon the face of the deed.

The recital that the land was to be equally divided between the grantees, at the decease of the grantor, was not in derogation of the absolute grant in fee simple. The most that can be said of the recitals is, they manifest an awkward, and probably successful, attempt to reserve to the grantor a life-estate in the land.

An instrument executed conformably to the statute, which is to operate in the lifetime of the grantor, and which passes any estate in the property during the grantor's lifetime, even though the absolute enjoyment of the estate passed is postponed until after the grantor's death, is a deed, and not a will. In re Will of Diez, 50 N.Y. 88.

Prior to the enactment of the statute of uses, a deed which attempted to create a freehold estate to commence in futuro, without a particular estate to support it, was invalid. By the express terms of section 2959, R. S. 1881, such estates may now be created. Wherever the estate is presently created, so that an interest vests with the execution of the paper, then, even though the enjoyment of the estate is postponed, the instrument creating it is a deed.

The conveyance under consideration, in our view, vests a present estate in fee simple in the grantees. If it contains the reservation of a life-estate in favor of the grantor, it does so only by implication. Whether it does or not can make no difference, inasmuch as a present interest is vested in the grantees. It would seem probable that the purpose was to reserve the use and possession of the estate to the grantor during her lifetime, the grantees meanwhile paying the taxes, expense of repairs and improvements. Of the validity of such a deed there can be no question. Tompson v. Browne, 3 Myl. & K. 32; Hall v. Burkham, 59 Ala. 349.

The case of Turner v. Scott, 51 Pa. 126, involved the construction of a deed in many respects similar to that above set out. The deed there, however, contained the following stipulation: "Excepting and reserving, nevertheless, the entire use and possession of said premises unto the said John Scott and his assigns for and during the term of his natural life; and this conveyance in no way to take effect until after the decease of the said John Scott the grantor." The habendum was to have and to hold the premises "after the decease of said John Scott." It was held that inasmuch as it appeared on the face of the deed that it was not to take effect until after the death of the grantor, it was inoperative as a deed.

The case of Leaver v. Gauss, 62 Iowa 314, 17 N.W. 522, turned upon the construction of a deed similar in effect to that involved in Turner v. Scott, supra. The deed in the Iowa case contained a stipulation that the "grantee shall have no interest in said premises as long as the said grantors or either of them shall live." This was held to be testamentary in character.

An instrument, having otherwise the formalities of a deed, will be construed to operate as a deed, whenever it appears therefrom that it was the intent of the maker to convey any estate or interest whatever, to vest upon the execution of the paper. If, however, it appears that all the estate which it was the purpose to convey was reserved to the grantor during his life, and the deed was only to take effect upon the death of the grantor, it will be construed to be testamentary in its character. Wall v. Wall, 30 Miss. 91; 19 Cent. L. J. 46.

The rule is that unless an instrument, which has been fully executed, from every point of view seems to be a nullity, it will not be intended that the parties meant that it should be invalid, and some effect will, if possible, be given to it. Gano v. Aldridge, 27 Ind. 294; Stout v. Dunning, 72 Ind. 343.

The decision in the case of Jones v. Loveless, 99 Ind. 317, was based mainly on the fact that there had been no delivery of the deed in the lifetime of the grantor. It was said incidentally in that case, that the reservations in the deed clearly showed that the grantor did not intend it to take effect or become operative for any purpose during his natural life. Upon the assumption that such purpose appeared upon the face of the deed, the conclusion there reached is in harmony with our conclusion here. In the case before us we think no such purpose is apparent.

Concerning the objection which was made to the admission of evidence relating to the understanding of the parties to the...