Stratford v. Lattimer

• Decision Date: 01 February 1951
• Docket Number: 3 Div. 583
• Citation: 50 So.2d 420,255 Ala. 201
• Parties: STRATFORD v. LATTIMER et al.
• Court: Alabama Supreme Court

Page 420

50 So.2d 420

255 Ala. 201

STRATFORD v. LATTIMER et al.

3 Div. 583.

Supreme Court of Alabama.

Feb. 1, 1951.

Rehearing Denied Feb. 22, 1951.

Rives & Godbold, of Montgomery, for appellant.

Walter J. Knabe, of Montgomery, for appellee.

SIMPSON, Justice.

Appeal from a decree sustaining demurrer to a bill for declaratory judgment for the construction of a deed and for relief incident thereto. Decision turns on a proper construction of the deed.

The deed was one of gift executed May 11, 1898, by S. Cornelia Graham to her daughter, Eugenia Stratford, for life with remainder over after her death to Eugenia's children, etc. When the deed was executed the grantee's children were Celia Stratford (Lattimer) and William Stanley Stratford, the appellees, and John B. Stratford, who predeceased his mother, leaving as his only descendant his son, Frank de Graffenreid Stratford, the appellant, who filed the bill. In essence, the question is whether the conveyance to Eugenia granted to her said children a vested remainder or a contingent remainder or a vested remainder subject to be divested. See Smaw v. Young, 109 Ala. 528, 547, 120 So. 370; Lyons v. Bradley, 168 Ala. 505, 53 So. 244.

The two pertinent provisions of the deed appear in the granting and habendum clauses. The granting clause recites that the grantor, Mrs. Graham, has '* * * granted, bargained and sold, and by these presents do hereby grant, bargain, sell and convey unto the said Eugenia Stratford, for and during the term of her natural life, and after her death to her children, the following described real estate' (describing it). (Emphasis ours.)

The habendum clause of the deed reads: 'To have and to hold the aforegranted premises, together with the appurtenances, privileges and improvements thereunto belonging, unto the said Eugenia Stratford for and during the term of her natural life and after her death to her children or their descendants; that is if any of the said Eugenia Stratford's children shall die before the said Eugenia, leaving a child, or children, such child or children shall take the interest in said lot to which the parent would have been entitled had it been living.' (Emphasis supplied.)

During the lifetime of the grantee, Eugenia, and before her son John B.'s death, her said three children executed a deed of conveyance quitclaiming to her all of their right, title and interest in the property; and on her death, Eugenia, by will devised the property to her two then living children, Celia and William Stanley, the appellees here. As observed, John B. predeceased his mother and the contention of his brother and sister, the appellees, is that the granting clause conveyed to the three children then living when the deed was executed and delivered a vested remainder in the property, on the basis of which the complainant would have no interest, his father having theretofore during his lifetime quitclaimed his vested interest to the life grantee in the original deed. The trial court was in agreement with this theory and therefore sustained the demurrer to the bill.

The complainant, who has appealed from that decree, however, argues that the disposition to Eugenia's children was per stirpes and that the remainder to them was defeasible on condition subsequent, viz., by the death of child, before Eugenia's death, leaving children; that, therefore, since that event occurred, the complainant, being the only child or descendant of John B. Stratford, became vested with an undivided interest in the property by virtue of the habendum clause in the deed.

Unless our effort to construe the two recitals in the deed should become ensnared with arbitrary rules of construction which would distort the real apparent language of the conveyance, we think it plain that the construction sought for by the bill to be a correct one and adverse to the ruling below.

The trial court was evidently guided in his conclusion by the general principles (1) that the granting clause, unless ambiguous or obscure, prevails over introductory recitals or statements in the habendum clause, if contradictory or repugnant thereto, Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A.,N.S., 719; Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180; (2) where an estate is expressly granted, a reservation, exception or restriction following which destroys the grant is void, Horticultural Development Co. v. Lark, 224 Ala. 193, 193 So. 229; and (3) absent of a clear showing of an intention to the contrary, estates will vest and an intent to postpone vesting must be clearly established. McCurdy v. Garrett, 246 Ala. 128, 19 So.2d 449.

While these rules of construction are steadfastly adhered to, they must be considered in the light of the governing rule that the real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, arbitrary rules should not be allowed to subvert that intention. Deramus v. Deramus, 204 Ala. 144, 85 So. 397; Porter v. Henderson, 203 Ala. 312, 82 So. 668; Irwin v. Baggett, 231 Ala. 324, 164 So. 745; Dickson v. Van Hoose, supra; Cobbs v. Union Naval Stores, 202 Ala. 333, 80 So. 415; Gentle v. Frederick, 234 Ala. 184, 174 So. 606.

It is, of course, true that arbitrary rules of construction must control if there be two clauses in a conveyance which are utterly inconsistent with each other and which cannot be reconciled or made to stand together, under which circumstances the granting clause prevails. But this rule should never be resorted to until all efforts to reconcile the conflicting parts have failed. Deramus v. Deramus, supra. And if from a consideration of the entire instrument there is doubt or obscurity as to the real meaning of the granting clause, the entire instrument must be construed so as to give effect to all of its provisions if possible....