Summary
In Martin v. Adams, 216 Miss. 270, 62 So. 2d 328 (1953), the Court held that the grantee, Mrs. Adams, did not accept a deed from the grantor, her husband.
Summary of this case from Green v. Cooley (In re Estate of Green)Opinion
No. 38619.
January 19, 1953.
1. Equity procedure — deraignment of title.
Deraignment of title is required only in bills to confirm title to real estate and to cancel and remove clouds therefrom, so that when the suit to cancel a deed is solely between the parties to that deed no deraignment is necessary. Sec. 1325, Code 1942.
2. Deeds — repugnance between two clauses.
Where there is a clear and manifest repugnance between two clauses of a deed the first will prevail, but this rule cannot be invoked where one plain intention can be deduced from the instrument as a whole.
3. Deeds — delivery — acceptance.
It is essential to the validity of a deed that (1) there was a delivery of it to or for the grantee and (2) that it was accepted by the grantee.
4. Deeds — delivery — recordation — presumption.
While the recordation of a deed raises a presumption of its delivery, the presumption yields to proof that the deed was never delivered.
5. Deeds — delivery — life tenant — remaindermen.
The delivery of a deed to, and its acceptance by, a life tenant thereunder will constitute a sufficient delivery for the benefit of the remaindermen, but where the life tenant refused acceptance and no delivery was made to her, there could be no delivery through her for the benefit of the remaindermen.
Headnotes as revised by Holmes, J.
APPEAL from the chancery court of Amite County; J.T. LOWERY, Special Chancellor.
Norman B. Gillis, Jr., and L.S. McClaren, for appellants.
I. As to the alleged repugnancy between the initial granting clause and the other parts of the instrument.
In determining the estate created by a deed, the Court will, under the modern rules of construction now adopted, consider the deed as a whole without regard to its formal division into parts, or the position of its different clauses, and will reconcile all apparent inconsistencies, if possible, the purpose sought being to effectuate the intent of the grantor as gathered from the entire instrument. The granting clause will control other parts of the deed inconsistent therewith only where it is impossible to ascertain the grantor's intention from a consideration of the entire instrument. 26 C.J.S. 430, Secs. 128, 129; Moss v. Jourdan, 129 Miss. 698, 92 So. 689; Goosey v. Goosey, 48 Miss. 210; Robinson v. Payne, 58 Miss. 690; Hart v. Gardner, 74 Miss. 156, 20 So. 877; Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341; Federal Land Bank of New Orleans v. Cooper, 190 Miss. 490, 200 So. 729.
A deed will operate to convey a life estate with a remainder over, where, from a consideration of the entire instrument, such appears to be the grantor's intent. A life estate is conveyed where the various parts of the deed taken as a whole manifest such an intention, notwithstanding the use of words which would import a fee. An unqualified grant to the first taker will give him only a life estate where there is a limitation over on his death. 26 C.J.S. 403, Sec. 112; Massey, et al. v. Whittaker, 126 Miss. 99, 88 So. 518.
The instrument on its face expresses the full intention of the grantor, which intention is borne out by the testimony to the effect that the grantor intended that his wife take a life interest in the property with a remainder over on her death to the named remaindermen. In construing a deed, the paramount duty of the court is to ascertain the intention of the grantor from the language employed in the instrument, and the courts are compelled to identify the intent of the grantor with his plain language. Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; Sumner Lbr. Co. v. Skipper, 183 Miss. 595, 184 So. 296.
II. As to failure of consideration.
A deed of conveyance will be supported by a consideration of natural love and affection. The relationship existing between husband and wife is sufficient to render love and affection between then good consideration, and so of the relationship of parent and child. Under the decided cases, it is certain that a nominal consideration coupled with a consideration of love and affection will support a deed, nor is actual payment of the nominal consideration which is stated in the deed considered essential. 26 C.J.S. 193, Sec. 18; Campbell v. State Highway Comm., 212 Miss. 437, 54 So.2d 654.
III. As to delivery.
The doctrine of constructive delivery is well established in this state: "By the grantor's actual overt act in the delivery of a deed to the clerk to be recorded in the public records, the delivery is as complete, so far as delivery is concerned, as if there had been a manual delivery by the grantor into the very hands of the grantee." Griffith C.J., concurring in Wilburn v. Wilburn, 37 So.2d 256, suggestion of error overruled 37 So.2d 775.
A deed delivered to one cograntee will operate as if delivered to all grantees. 26 C.J.S. 252; Jones v. Hammett, 2 Miss. 265; Chapman v. Lott, 110 So. 793.
IV. As to acceptance.
Acceptance may be evidenced by acts, conduct, or words showing an intention to accept, even though the deed does not pass to the grantee. Acceptance of a deed binds both the grantor and grantee. A refusal of one of several of the grantees to assent to a conveyance does not render the deed void as to the parties who accepted, nor does such refusal operate to vest the whole property in the other grantee; but the share of the nonaccepting party remains in the grantor. Refusal of a grantee of a life estate to accept a deed does not defeat the estate of the remaindermen who do accept the conveyance. 26 C.J.S. 256.
While the rule that the interest of a nonaccepting party remains in the grantor, 26 C.J.S., Sec. 51C, would suffice to bring about the result stated above, a case exactly in point is found at 185 Okla. 20, Maynard v. Hustead, 90 P.2d 30, where the refusal of a life tenant to accept a deed did not defeat the estate of the remaindermen who accepted the grant of their interests under the same instrument.
F.D. Hewitt, and Gordon Gordon, for appellees.
The appellants, first, brief upon the irreconcilable and repugnant clauses of the deed. It is their contention that there is no conflict in the clauses of the deed and there is no trouble at arriving at the intention of the parties from the whole instrument as the intention of the parties thereto is plain and refer to, in support of their contention, the cases of Moss v. Jourdan, 129 Miss. 698, 92 So. 689; Goosey v. Goosey, 48 Miss. 210; Robinson v. Payne, 56 Miss. 690; Hart v. Gardner, 74 Miss. 156; Dunbar v. Aldrich, 79 Miss. 698, 30 So. 341; Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729.
There is no trouble at arriving at the contention of the parties in the construction of the deed of Moss v. Jourdan, Hart v. Gardner, and the Federal Land Bank of New Orleans v. Cooper, as cited above as these deeds distinctly state as to what the agreement was between the parties and as to the estate as was granted therein. This is not true, however, as to the case of Dunbar v. Aldrich, which is very much in point with the case now before the Court.
We wish to call the attention of the Court to the case of Raley v. Raley, 121 Miss. 555, in which the Court construed the deed made by the husband to the wife, which contained inconsistent and repugnant clauses.
The rule of law is clearly stated in 26 C.J.S. beginning at
The appellants next consider the failure of consideration as decided by the lower court. In connection with this the Court will bear in mind that there was never any discussion of the deed, the terms of the deed, the consideration, or any matter connected with the deed between the grantor, Pink Adams, and his wife, Mrs. Florence Adams. That Mrs. Florence Adams, unquestionably, from all of the testimony in this case refused to accept the deed and never accepted the deed and when she could not secure a quitclaim deed from the children, conveying back to their father the land, she then filed this suit.
The cases cited by the appellants in support of failure of consideration as avoiding the deed are not in point, or controlling in this case as they refer to different matters and different cases given and different facts.
The appellants next argue and contend that there was a delivery of the deed in this case in that after the appellee, Pink Adams, had signed and acknowledged the deed it was delivered to the clerk by the attorney and recorded and that this constituted delivery and he cites two cases in support of their position as to delivery. They cited the case of Wilburn v. Wilburn reported in 37 So.2d 256, suggestion of error overruled, 37 So.2d 775, and the case of Chapman v. Lott, 144 Miss. 841, 110 So. 793. We earnestly insist that neither of these cases are in point and the facts are altogether different in every particular from the facts in the case as cited by the appellants.
The appellants undertake to contend that there was an acceptance of the deed by the wife and that an acceptance by any of the grantees was an acceptance for all of them. If the appellants in this case had studied the question of delivery of the deed and acceptance and had read the cases that the appellees relied upon as decided by this Court and which are in point as follows: Metcalf v. Brandon, et al., 60 Miss. 685; Ligon, et al. v. Burton, 88 Miss. 135; Hall v. Wadell, 78 Miss. 16-26; Graham v. Graham, 57 So.2d 175; Lynch v. Lynch, 121 Miss. 792; Barner v. Lehr, 190 Miss. 77, 199 So. 273, they would have found out that under the holdings of this Court that there was neither an acceptance of the deed, nor a delivery.
On page 236, 26 C.J.S., par. 41, it is stated as a law: "The parties must mutually assent to the deed, and there can be no valid delivery without the knowledge or consent of the grantor or acceptance by the grantee."
See also page 254, 26 C.J.S., the subject of "Mode Sufficiency" of delivery and acceptance.
It appears to be the general law that the minds of the grantor and the grantee must meet upon the execution of the deed and the delivery and the acceptance of it, by the parties.
The latest case upon the question of delivery and acceptance of a deed and in point with the facts in this case is the case of Graham v. Graham, 57 So.2d 175. See also Barner v. Lehr, 190 Miss. 77, 199 So. 273.
The appellees here, who are husband and wife, brought this suit in the Chancery Court of Amite County against their eight children to cancel a deed executed by the appellee, Pink Adams, on September 8, 1950, purporting to convey to his wife approximately 402 acres of land in Amite County, and providing that "at the death of my wife the remainder in and to the said land is to go to and become the property of our children in equal shares. The descendants of any deceased child are to receive the same interest that the father or mother would have received if living at the time of my death."
The validity of the deed was assailed upon a number of grounds, but we deem it necessary to notice only the charge that the deed was void because of repugnancy between the granting clause and the latter clauses of the deed, and because of non-delivery.
There was a demurrer to the bill upon the ground that there was no deraignment of title. This demurrer was overruled and we think rightly so. (Hn 1) Deraignment of title is required only in bills to confirm title to real estate, and to cancel and remove clouds therefrom. Sec. 1325, Mississippi Code of 1942. The primary purpose of this suit was to cancel the aforesaid deed and such was the relief prayed for in the original bill. Deraignment of title in the bill was, therefore, not required.
Assuming for the present the validity of the deed otherwise, we find no objection to it upon the ground of repugnancy. It is a well known rule of construction that (Hn 2) where there is a clear and manifest repugnance between two clauses of a deed, the first will prevail, but this rule cannot be invoked where one plain intention can be deduced from the instrument as a whole. It is manifest from the whole instrument that it was the intention of the grantor to convey to his wife a life estate only, with remainder to his children. Massey et al. v. Whittaker, 126 Miss. 99, 88 So. 518.
We have reached the conclusion, however, that the deed is invalid because there was neither a delivery of the deed nor acceptance of it by the grantees. The facts are undisputed. The appellant, Pink Adams, was about 83 years of age. He was the owner of about 402 acres of land which he and his wife had occupied as their homestead since their marriage, a period of approximately 60 years. Without the knowledge of his wife, he had an attorney prepare the deed in question and executed it, and directed the attorney to file it for record and have it returned to him by the clerk. The attorney filed the deed for record on the same afternoon and paid the recording fees on it, and in a day or two thereafter it was mailed back to Mr. Adams by the clerk and placed in a safe with his private papers. On his return home on the night of the day of the execution of the deed, Mr. Adams told his wife what he had attempted to do and his wife immediately declined to accept the deed, and remonstrated with him for what he had done. The deed remained at all times in the possession of the grantor except during the short period it was in the hands of the clerk for recordation, and except on an occasion when Mrs. Adams took the deed to an attorney for his interpretation of it.
(Hn 3) It is well settled that the delivery of a deed is essential to its validity. 26 C.J.S., page 231. It is equally well settled that it is essential to the validity of a deed that it be accepted by the grantee even though it is recorded. 26 C.J.S., page 253. (Hn 4) While the recordation of a deed raises a presumption of its delivery, this presumption yields to the proof that the deed was never delivered. Lynch v. Lynch, 121 Miss. 752, 83 So. 807; Graham v. Graham, 213 Miss. 449, 57 So.2d 175. The proof is undisputed that Mrs. Adams, the life tenant, declined acceptance of the deed immediately upon being advised of its execution, and the deed upon being recorded was returned to the grantor and remained in his control. (Hn 5) Had there been a sufficient delivery of the deed to Mrs. Adams, the life tenant, it would have constituted a sufficient delivery for the benefit of the remaindermen. 26 C.J.S., page 252. The life tenant, however, declined to accept the deed and there being no delivery to her, there could be no delivery through her for the benefit of the remaindermen. The undisputed proof shows that there was not sufficient delivery and acceptance of the deed by the grantees, and hence the presumption of delivery arising from the recordation of the deed disappears. Lynch v. Lynch, supra; Graham v. Graham, supra.
We are accordingly of the opinion that the proof clearly establishes the non-delivery of the deed and that it is void for this reason, and that the trial court was correct in so holding. The question of the effect of the failure of Mrs. Adams to join her husband in a conveyance including homestead property is not raised, and we do not pass upon it and deem it unnecessary to do so in view of the conclusion we have reached. The decree of the court below is affirmed.
Affirmed.
Hall, Kyle, Arrington, and Ethridge, JJ., concur. McGhee, C.J., took no part.