Wilson v. Carrico
| Decision Date | 15 March 1895 |
| Docket Number | 17,235 |
| Citation | 40 N.E. 50,140 Ind. 533 |
| Parties | Wilson v. Carrico |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
Judgment reversed at the cost of the appellee, with instruction to overrule the demurrer to the complaint and to proceed in accordance with this opinion.
J. S Bays, for appellant.
W. S Maple and J. T. Hays, for appellee.
Action in ejectment by appellant to recover certain real estate and to quiet title thereto. The error assigned is that the court erred in sustaining a demurrer to appellant's complaint. A condensed statement of the facts as they appear in the complaint, are as follows:
That on November 18, 1867, one Bazzle Carrico was the owner in fee simple of certain described lands situated in Sullivan county, Indiana. On that day he and his wife, Frances, duly executed to one Elza Carrico a deed for the real estate sought to be recovered in this action, said deed being as follows, to wit:
ss:
This deed was recorded in a few days after its execution in the recorder's office of Sullivan county, Indiana. On March the 9th, 1870, Elza Carrico and wife conveyed the land in controversy, by a warranty deed, to appellant, for and in consideration of the sum of two hundred and fifty dollars ($ 250), and they provided in this deed that the land was conveyed subject to the life estate of Bazzle and Frances Carrico. This deed was also acknowledged and recorded. Bazzle Carrico died on September 6, 1872, and his wife, Frances, died on January 11, 1892. Other facts, not necessary to be considered in the determination of this case, are omitted. We are informed by the briefs of the parties that the trial court held the deed void upon the ground that in its character it was testamentary. The learned counsel for the appellant denies that the deed is in any respect testamentary, and insists that by it there was a conveyance of the premises therein described to the grantee and that the subsequent and questionable clause therein contained was intended by the grantor as a reservation or postponement of the full use and enjoyment of the realty by the grantee until after the death of the grantors; that after the demise of each of these the deed in question was to be in full force, or, in other words, that the complete enjoyment of the use and occupation of said land by the provision of the clause in controversy was postponed until after the death of Carrico and wife, and was then fully to vest in the grantee. Upon the other hand, the learned counsel for appellee say that they do not controvert but what the instrument in question was intended by the parties as a deed, and not as a will, and concede that it has all the formalities of the former. But they contend that it was the evident purpose and intent of the grantor to reserve all the estate which he intended to convey, and that the deed was not to take effect until after the death of himself and wife, and that hence it must be held to be testamentary in its character, and therefore void for the reason that it is not executed in accordance with requirements of the statute on wills. The instrument in question calls for a judicial construction, and in this the court must seek for and be guided by the intention of the grantor. And this intention must be deduced and arrived at by consideration of all of its parts, and in this construction we must observe and adhere to the rule that this deed in both the granting part and the clause under consideration must be construed most strongly against the grantor and in favor of the grantee.
It was a principle recognized by the feudal law, that there should always be a known owner of every freehold estate, and that the title thereto should never be in abeyance. Hence at common law a freehold to commence in futuro could not be conveyed for the reason that the same would be in abeyance from the execution of the conveyance until the future estate of the grantee should vest.
Under the statute of this State a freehold estate may be created to commence in futuro; section 2959, R. S. 1881, section 3379, R. S. 1894; and hence the common law principle above stated has been entirely abrogated. This deed is in the statutory form, and in the granting part accords with the provisions of section 2927, R. S. 1881, section 3346, R. S. 1894, and contains what are, by law, made operative words of conveyance, and in effect transfers all the estate or interest of the grantors in the lands in suit to the grantee. The terms "convey and warrant," when given their legal purport or acceptation, fully indicate an intention to convey a present estate to the grantee, and defend the title thereto; and in no way is it apparent or to be inferred from these words that the grantors intended to devise the real estate in question. The instrument was acknowledged and recorded in like manner as are other deeds, therefore we fail to recognize anything which signifies that it was intended to serve the purpose of a will. The question then arises, what was the purpose intended to be served by the inapt expression, namely: "To be of none effect until after the death of said Bazzle Carrico and Frances Carrico, then to be in full force."
It is evident that the drafting of the indenture in question was not skillfully performed, and that thereby it very closely approximates to what may be termed the "danger line" by which a judicial construction might result in adjudging the deed to be a nullity.
While it may be said in regard to the point under consideration that the authorities "fight on both sides" of the question; however, we find that in the later decisions the courts are inclined to uphold a deed of this character, if, upon a reasonable interpretation of all its parts, it can be said that the grantor did not intend to create, or in other words execute, that which must be construed and held to be void.
In construing written instruments courts frequently do,--and properly, too,--give to an expression a meaning different...
To continue reading
Request your trial