Wright v. Smith

• Decision Date: 09 October 1952
• Docket Number: 8 Div. 629
• Citation: 257 Ala. 665,60 So.2d 688
• Parties: WRIGHT v. SMITH et al.
• Court: Alabama Supreme Court

Page 688

60 So.2d 688

257 Ala. 665

WRIGHT v. SMITH et al.

8 Div. 629.

Supreme Court of Alabama.

Oct. 9, 1952.

H. H. Conway, Albertville, for appellant.

T. Harvey Wright, Guntersville, guardian ad litem, for appellee.

SIMPSON, Justice.

This is a suit in equity for a declaratory judgment to construe a real estate deed and to determine the nature and extent of the estate conveyed the respective grantees.

The deed, omitting description and acknowledgements, reads:

'The State of Alabama

Marshall County

'Know All Men By These Presents:

'That we Stanley Brown and Eunice Brown, his wife, of Marshall County and State of Alabama, for and in consideration of the sum of Seventeen Hundred Dollars to us in hand paid, the receipt whereof is hereby acknowledged, have granted, bargained, and sold and by these presents do grant, bargain, sell, and convey to L. G. Wright and Lola B. Wright their heirs and assigns, the following described real estate, to-wit:

* * *

* * *

'(It is mutually agreed by L. G. Wright and Lola B. Wright, the grantees in this deed, that if either of us should die then, in that event, the entire interest in the above described land is vested in the living person.)

'Together with all and singular the tenements and appurtenance thereunto belonging or in anywise appertaining. To have and to hold to the said L. G. Wright and Lola B. Wright their heirs and assigns, in fee simple forever.

'In witness whereof, we have hereunto set our hands and seals this 6 day of November, 1941.

'Stanley Brown (Seal)

Eunice Brown (Seal)' The record discloses that grantee Lola B. Wright was the wife of the other grantee, L. G. Wright; that she died September 21, 1944; that the issue of this married couple was one son, Thomas Darrell Wright, of the age of five years at the time of her death; that thereafter, January 13, 1945, her said husband, the surviving grantee in the Brown deed, executed a deed conveying the full fee-simple title of the land to appellee W. C. Smith, relying upon the parenthetical clause in the deed, italicized above, as vesting in him such fee-simple title, his wife, Lola B. Wright, having predeceased him.

On a final hearing, the trial court held that the purported survivorship clause was ineffectual to vest in L. G. Wright the one-half interest of his deceased wife, Lola B. Wright, but that on her death her interest descended to her only heir, her son Darrell (subject, of course, to the curtesy right of her husband). We are in accord. All of our cases, including the most recent of Henry v. White, Ala.Sup., 60 So.2d 149, establish the correctness of this view.

The granting clause expressly designated the estate conveyed to each grantee, an undivided one-half estate in fee simple. Of such import are the words 'grant, bargain, sell and convey to L. G. Wright and Lola B. Wright their heirs and assigns.' The words 'their heirs and assigns' are specific words of inheritance. Hamner v. Smith, 22 Ala. 433; Henry v. White, supra.

The parenthetical survivorship clause purported to diminish or cut down this estate in fee simple. But the established rule is that the granting clause of a deed, unless ambiguous or obscure, prevails over introductory recitals, statements in the habendum or other clauses, if they are contradictory or repugnant to the granting clause. Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420; Henry v. White, supra, and authorities cited in these two cases.

A reservation, exception or restriction following an express grant, as here, which destroys the grant is void. Horticultural Development Co. v. Lark, 224 Ala. 193, 139 So. 229; Stratford v. Lattimer, supra.

Another pertinent principle adverted to in ...