페이지 이미지
PDF
ePub

And in Wood v. Moss (1917) 176 Ky. 419, 195 S. W. 1077, the deed expressly reserves the right of possession during the grantor's lifetime, and the right to collect rents from the property conveyed. The court says that "while this did not destroy the effect of the conveyance as a deed, it Idid have the effect to make it testamentary in character, and therefore [it] did not require the same mental capacity to execute it as is required in one made between parties dealing at arm's length."

A written instrument in the form of a deed, executed by a husband and wife under seal, using the ordinary words of bargain, sale, and conveyance, containing a covenant of warranty, reciting a valuable consideration, attested by two witnesses, delivered on the day of its date, and subsequently recorded, is held in Griffith v. Marsh (1888) 86 Ala. 302, 5 So. 569, to be a deed, and not a will, despite the following clause contained in the instrument: "And we

agree that, at and after our death, the said, Mary E. [grantee] is to have all the benefits of said lands in fee simple, but it is to belong to us as long as we or either of us shall live."

So, an instrument in the form of a deed, disposing of all the property of the grantor, with the exception of the reservation of a life estate, and providing that the purchase price is to be paid by the grantee to persons designated by the grantor, after the grantor's death, is not testamentary, it is held in Meyer v. Stortenbecker (1917) 184 Iowa, 441, 165 N. W. 456; neither the retention of the beneficial use, nor the postponement of the payment of consideration till after the grantor's death, having the effect of preventing the passing of present title. An instrument in the form of a deed, reserving to the grantors "the right to take and receive all the rents, issues, and profits thereof during their joint lives .. the grantors to pay all the taxes, assessments, and governmental charges," is held in Magoon v. Lord-Young Enginering Co. (1914) 22 Haw. 327, to constitute a good conveyance of the fee to the grantees, subject

to the joint life estate in the grantors, and not to be testamentary.

And a deed, without other ambiguity, exception, or limitation, and containing a clause whereby the grantor "expressly excepts and reserves from this grant all the estate in said lands, and the use and occupation, rents and proceeds, thereof, unto himself during his natural life," is held in Cates v. Cates (1893) 135 Ind. 272, 34 N. E. 957, to convey a present interest, the enjoyment of which is postponed, and not to be testamentary in character. The court is of the opinion that the reservation of the use and occupation indicates a purpose to reserve a life estate, and that it could not be the maker's intention, by his reservation of "all the estate in said lands," to withhold the fee from the grantees until after his death, and thus to render the reservation of the life estate a nullity.

An instrument in the form of a deed, containing a clause excepting "the uses, rents, and profits" of the land conveyed during the grantor's natural life, is held in Dozier v. Toalson (1903) 180 Mo. 546, 103 Am. St. Rep. 586, 79 S. W. 420, to convey a vested fee in remainder, and to be a deed, and not a will.

In Summerlin v. Gibson (1849) 15 Ala. 406, involving a deed of gift of certain slaves, absolute on its face, but modified by a parol agreement between the grantor and grantee that the latter was not to trouble the property during the grantor's lifetime, the court, considering the deed as though the oral provision were contained in the instrument, holds that the effect thereof is the reservation of a life estate in the grantor, and the conveyance in præsenti of the vested title of the remainder in the grantee, and that the instrument, accordingly, may take effect as a deed.

In Nixon v. Frick Coal Co. (1900) 27 Pa. Co. Ct. 150, an instrument in the form of a deed, containing a reservation to the grantor and his wife, "as a personal privilege not assignable, the western end of the brick mansion house on said land," is held to be a

deed creating a present interest in fee simple.

See Hall v. Burkham (1877) 59 Ala. 349, infra, III. c, 2, (k); Jenkins v. Woodward Iron Co. (1915) 194 Ala. 371, 69 So. 646, infra, III. c, 2, (g); Lewis v. Tisdale (1905) 75 Ark. 321, 88 S. W. 579, supra, II. a, 3; King v. Slater (1910) 96 Ark. 589, 133 S. W. 173, infra, III. c, 2, (p); Chandler v. Chandler (1880) 55 Cal. 267, supra, II. a, 4; Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570, 140 Pac. 242, infra, III. c, 2, (k); Williams v. Tolbert (1880) 66 Ga. 127, supra, III. c, 2, (d); Fish v. Sawyer (1836) 11 Conn. 545, supra, II. a, 4; Bowler v. Bowler (1898) 176 Ill. 541, 52 N. E. 437, infra, III. c, 2, (o); Kelly v. Parker (1899) 181 Ill. 49, 54 N. E. 615; Venters v. Wickens (1906) 224 Ill. 569, 79 N. E. 946, infra, III. c, 2, (o); White v. Willard (1908) 232 III. 464, 83 N. E. 954, infra, III. c, 2, (p); Calef v. Parsens (1892) 48 Ill. App. 253, supra, II. a, 3; Timmons v. Timmons (1911) 49 Ind. App. 21, 96 N. E. 622, infra, III. c, 2, (p); Saunders v. Saunders (1901) 115 Iowa, 275, 88 N. W. 329, infra, III. c, 2, (g); Phillips v. Thomas Lumber Co. (1893) 94 Ky. 445, 42 Am. St. Rep. 367, 22 S. W. 652, infra, III. c, 2, (g); Rawling v. McRoberts (1894) 95 Ky. 346, 25 S. W. 601, infra, III. c, 2, (g); Dudley v. Herring (1906) 30 Ky. L. Rep. 270, 98 S. W. 289, infra, III. c, 2, (g); Marden v. Chase (1850) 32 Me. 329, supra, II. a, 2, (b); Wyman v. Brown (1863) 50 Me. 139, supra, II. a, 2, (b); Drown v. Smith (1862) 52 Me. 141, supra, II. a, 2, (b); Watson v. Cressey (1887) 79 Me. 381, 10 Atl. 59; Brewer v. Hardy (1839) 22 Pick. (Mass.) 376, 33 Am. Dec. 747, supra, II. a, 2, (b); West v. West (1892) 155 Mass. 317, 29 N. E. 582, supra, II. a, 2, (a); Reed v. Brown (1915) 184 Mich. 515, 151 N. W. 592, infra, III. c, 2, (s); Myers v. Viverett (1915) 110 Miss. 334, 70 So. 449, infra, III. c, 2, (r); Christ v. Kuehne (1902) 172 Mo. 118, 72 S. W. 537, supra, III. c, 2, (b); Priest v. McFarland (1914) 262 Mo. 229, 171 S. W. 62, infra, III. c, 2, (0); WIMPEY V. LEDFORD (reported herewith) ante, 7, infra,

III. c, 2, (o); Jackson ex dem. Howell v. Delancey (1825) 4 Cow. (N. Y.) 427, supra, II. a, 2, (b); Jackson ex dem. Watson v. McKenny (1829) 3 Wend. (N. Y.) 233, 20 Am. Dec. 690, supra, II. a, 2, (b); Deckenbach v. Deckenbach (1913) 65 Or. 160, 130 Pac. 729, supra, III. c, 2, (d); Meek's Appeal (1881) 97 Pa. 313, infra, III. c, 2, (w); TRUMBAUER V. RUST (reported herewith) ante, 10; Horn v. Broyles (1900) Tenn., 62 S. W. 297, infra, III. c, 2, (o); Caines v. Marley (1831) 2 Yerg. (Tenn.) 582, supra, II. b; Carpenter v. Haning (1896) Tex. Civ. App. 34 S. W. 774, infra, III. c, 2, (o); Lockridge v. McCommon (1896) 90 Tex. 236, 38 S. W. 33, supra, II. c, 2, (d); Blanchard v. Morey (1883) 56 Vt. 170, infra, II. c, 2, (f).

And see Book v. Book (1883) 104 Pa. 240.

In other cases involving similar instruments, the specific question as to the character of the instrument is not raised, it being assumed, apparently, that the instruments are deeds, and that the only question raised by the clause postponing the taking effect of the instrument is in respect of the extent or nature of the estate created in the grantee, or reserved in the grantor or his wife thereby. It is not intended to go into these various questions of estate here, the cases being set out merely for whatever value they may have upon the question here under discussion.

Where a grantor reserves full and complete control over the property during his life, and the enjoyment of the rents, profits, and issues thereof, and makes the survivorship of the grantee a condition of the grant, it is held in Earle v. Dawes (1849) 3 Md. Ch. 230, that the condition is a condition precedent, and, upon the prior death of the grantor, no estate passes by the instrument.

And see Keliiilihune V. Vierra (1900) 13 Haw. 28, where it is urged that a deed reserving the possession and profits of the land during the grantor's lifetime does not pass a present interest, but where it is held that

it was the intention of the grantors to convey a present interest with a reservation of a life estate.

A deed in which the grantor reserves the management, control, disposition, rents, and profits of the land during his lifetime is held, in Bombarger v. Morrow (1884) 61 Tex. 417, to preserve a life estate in the grantor, with the remainder to the grantees upon his death.

So, it is held in Achorn v. Jackson (1894) 86 Me. 215, 29 Atl. 989, that, under a deed in which the grantor reserves a portion of the land during his natural life, with all privileges and appurtenances thereof, the grantor is merely a life tenant, and the grantee is remainderman, and that the grantor is liable for waste to the grantee.

In Chicago, P. & St. L. R. Co. v. Vaughn (1903) 206 Ill. 234, 69 N. E. 113, the maker of an instrument in the form of a deed, reserving the control, use, and occupation, and rents and profits, during the term of his natural life, is held to have only a life estate in the land, and the grantees are said to have the remainder, subject to the life estate.

In Planters' Bank v. Davis (1858) 31 Ala. 626, a deed of gift conveying lands to the grantor's daughter "for her sole and separate use, behoof, and benefit . . . and unto her heirs and assigns forever," and containing a stipulation, on the part of the grantee, consenting that the grantor may "have, use, occupy, and enjoy the before-conveyed premises, free and exempt from payment of rent, impeachment for waste, and all and every other charge for the possession, improvement, or use of the said premises," is held to reserve a life estate in the grantor, with a vested remainder in fee in the grantee.

By an instrument in the usual form of a deed, reserving the use for the life of the grantor, it is held in Cribb v. Rogers (1879) 12 S. C. 564, 32 Am. Rep. 511, that "the grantee takes the fee, burdened with a use in favor of the grantor for his natural life." Where, in Colby v. Colby (1855) 28 11 A.L.R.-5.

Vt. 10, a father deeded to his son a piece of land, upon the express condition that "I am to have the use and improvement of the premises during my life, if I have occasion therefor, and shall choose to do so," it is held that the grantor held a life estate in the land, which was extinguishable only by deed; and that a voluntary surrender of possession to the son, without the execution of a deed, was not sufficient to terminate his right.

So, it is held in Jenkins v. Jenkins (1817) 1 Mill, Const. (S. C.) 48, that, notwithstanding the reservation in a deed of the use of the premises for the life of the grantor, the life estate created in the grantee vests in præsenti, and the deed is not void.

A reservation of "the use and control of the above-described lands," contained in a deed, is held in Richardson v. York (1837) 14 Me. 216, to give the grantor but a life estate in the lands, and to confer upon him no right to cut timber trees therefrom for sale.

See Rollins v. Davis (1895) 96 Ga. 107, 23 S. E. 392, where there is no question as to the nature of the instrument conveying the property under consideration, but where the sole question is that of the estate conveyed by an habendum, containing a clause "after the support of" the grantor and his wife "their lifetime." This clause was held to create a life estate in the grantor, and not an obligation of support on the part of the grantees.

Where, in Sherman v. Dodge (1855) 28 Vt. 26, the grantor conveys his property on condition that he and his wife shall have the use and possession during their lives, and that the grantee is to have possession at their deaths, and not till then, the court says: "Here the conveyance is, in the most general and unlimited terms, of the whole estate, with what is called, in the deed, a condition; and a condition subsequent, as this is, is something to be performed by the grantee, and if it is not performed, the conveyance is thereby defeated, and becomes inoperative. In the present case, the spirit of the condition is that

the grantee shall suffer the grantor to enjoy the premises during his life, and, if his wife survives him, then suffer her to enjoy the use during her life. And although these are not uses which can be executed under the Statute of Henry VIII. [Statute of Uses], that not being in force here,

yet a court of equity will execute them."

In Gorham v. Daniels (1851) 23 Vt. 600, the grantor provided that the land conveyed should not come into the possession of the grantee until after the decease of the grantor and his wife. Of the estate created thereby in the wife, it is said: "The most which could be made out of that deed is the reservation of an estate during the life of the grantor and his wife. This would, of course, leave the estate in his personal representative, after his decease. And the only right which the widow could have would be by way of dower."

Where, in Jackson ex dem. Wood v. Swart (1822) 20 Johns. (N. Y.) 85, the owner of land and his wife, joined in a conveyance thereof, reserving "to themselves the use of the premises during their natural lives," it is held that, while the deed cannot operate as a reservation or exception on behalf of the grantor's wife, after grantor's death, it is valid and effectual as a covenant to stand seised to the use of the grantor himself during his life, and, after his death, to the use of his wife for life.

In Emery v. Chase (1828) 5 Me. 232, involving a reservation of "the improvement of one half of said premises, with necessary wood for family use, during my natural life, and the life of my wife," where the question of the title of the wife after the decease of the husband was raised, it is said: "Taking the whole instrument together, it is apparent that it was the intention of the grantor that the estate should pass, one moiety to the use of the grantee and his heirs in fee, and the other moiety to the use of the grantor and his wife for their lives, and the life of the survivor of them, with remainder in fee to the grantee

and his heirs. Had these uses been declared formally and technically, the statute [of uses] would have executed them, according to the intention of the grantor. There is, in this deed, a want of accuracy and legal precision in the language used, but, as the intention is plain, and the uses manifest, we are of opinion that they may be regarded as executed by the statute, without violating legal principles."

In Banks v. Marksberry (1823) 3 Litt. (Ky.) 275, involving a deed of slaves, containing words of present grant and reserving, in a subsequent clause, the enjoyment thereof during the life of the grantor and his wife, it is said that the gift and the reservation are not inconsistent, but that, "if either the reservation or the gift must be void because of their inconsistency, it is obviously much more consonant to general principles that the former should be so than the latter."

In Howell v. Howell (1847) 29 N. C. (7 Ired. L.) 491, 47 Am. Dec. 335, the owner of lands, negroes, and chattels conveyed them by unconditional deed to his sons, and at the same time took from his sons a writing providing, under a penalty, that the father was to have possession of the land and chattels during his lifetime. The court says: "There is no doubt that all instruments executed at the same time, and relating to the same subject, may be treated as forming but one, and construed together. But that is not the natural construction, and is only resorted to in order to effectuate the intention, and where the provisions of the two instruments, if put together, will not be incompatible. Where contracts are put into several instruments, each of which has a sensible meaning, and may have full operation by itself, it would be a hazardous assumption to put them together for the purpose of making them mean, as one, differently from what they could in this separate state." The writing given by the sons is held not to be a part of the deed, especially since so doing would render void the conveyance with respect

to the chattels, by reason of the life estate which would be reserved in the father, were the two instruments read together.

And see Nuckols v. Stone (1905) 120 Ky. 631, 87 S. W. 799; Culbreath v. Smith (1888) 69 Md. 450, 1 L.R.A. 538, 16 Atl. 112; Waugh v. Waugh (1877) 84 Pa. 350.

(1) Reservation of right, title, and interest during maker's life.

In Bunn v. Bunn (1857) 22 Ga. 472, an instrument in the form of a deed, reciting consideration, containing the usual words of grant and warranty, and providing that the grantor reserves to herself her right to the property during her life, after which the grantee is to have it in fee simple, is held to be a deed. As an additional reason for holding the instrument a deed, the fact that there is a deficiency of witnesses required for a will is pointed out. "If it be true," says the court, "that we are at liberty to strain an instrument, when by straining it we can prevent it from being void, how much more true must it be that we are not at liberty to strain an instrument, when by straining it we render it void."

So, title in præsenti is conveyed to the grantee, with a reservation of a life estate in the grantor, it is held in Sharpe v. Mathews (1905) 123 Ga. 794, 51 S. E. 706, by an instrument in the form of a deed, attested as a deed, and delivered to the grantee, although it provides, immediately following the description of the land, that "said tract of land is to remain the right and property of said Betsey A. Mathews [grantor] for and during her natural life, and to become the property of the said Daniel L. Mathews [grantee], in fee simple, immediately upon the death" of said grantor; and that, in the event of the survival by the grantor of the grantee, then, "immediately upon the death of

[the grantor], said property is to become the property in fee simple of the heirs" of the grantee, and the instrument is not testamentary. The provision that the land is to remain

the property of the grantor for life "indicated the intent of the grantor to convey the fee with the reservation of a life estate," it is said, and “the provision that, if the grantor should survive the grantee, the land should, upon the death of the grantor, become the property, in fee simple, of the heirs of Daniel L. Mathews, simply indicated the intention of the grantor to convey an inheritable estate."

An instrument drafted in the form of a deed, declared in the body thereof to be a deed, and attested as a deed, does not become a will by the inclusion therein of a clause wherein the grantor reserves "title in the above-described land for and during" his natural life, and provides that, at his death, the deed is to be a feesimple title to the grantees. Mays v. Fletcher (1911) 137 Ga. 27, 72 S. E. 408. "Such an instrument is to be construed as a deed passing title in præsenti, with the right of possession postponed until the grantor's death."

So, in White v. Hopkins (1887) 80 Ga. 154, 4 S. E. 863, an instrument in the form of a deed, in consideration of services to be rendered by the grantee and containing words of grant, habendum, and warranty, is held to be a deed, although it is provided that the title of the land is to remain in the grantor during his lifetime, and "at his death to immediately vest in the said Lewis Hopkins [grantee], in case he and his family faithfully perform their part of the contract; but in case the said Lewis Hopkins and his family fail to carry out their obligation, then

title is not to vest in said Lewis Hopkins." The decision of the court is, first, upon the ground that the various parts of the instrument are harmonious, and that the estate created is a fee, upon condition subsequent, with the reservation of a life estate therein. But "if this position should be deemed untenable," the court continues, "we would still hold the instrument a deed, on the ground that these words in the habendum clause would be repugnant to the first part of the deed, or granting clause,"

« 이전계속 »