Opinion
No. 37162.
September 26, 1949.
1. Deeds — indefiniteness in description — cancellation, when not available as a ground for.
Indefiniteness in part of description is no ground for the cancellation of a deed when under the same description the land has been passed back and forth between the parties, all of them well knowing the identity of the land sought to be described, and that it was intended to convey the land presently involved.
2. Life estate — control and possession.
During its existence a life estate is as effective to insure exclusive control and possession as is a title in fee.
3. Title to and dominion of land — methods of acquirement.
The only methods by which an investiture of title, or right of dominion can arise during owner's life time is by grant, tax sale, condemnation, estoppel, or adverse possession.
4. Life estate — deed in consideration of support, reserving life estate.
When a deed in consideration of support of the grantors by grantees, reserved a life estate in the grantors, and contained no provision whatever for the occupancy in whole or in part of the land by the grantees, the grantors were entitled not only to the exclusive possession of the land but also to its rents and profits during the existence of the life estate, even though grantees by consent of the grantors had been allowed to live on the lands in aid of the object for which the deed was given.
Headnotes as approved by Alexander, J.
APPEAL from the chancery court of Yalobusha County; HERBERT HOLMES, Chancellor.
Stone Stone, for appellants.
It is beyond dispute that the parties lived on the land until 1942, in April, when Walter Wright died and when he died he was still living in the house with Isom Wright, one of the appellants, and Monroe Wright, the other appellant, was still on the place. They lived on that way for a few months without any trouble whatever and this is shown by the testimony of the appellee and everyone else, and then in four or five months the appellee married one Sullivan and this man being related by blood to the appellee closer than first cousins alone, the appellants for the first time demurred and said they would not have Sullivan on the place. The appellants say they have never for one moment tried to dodge their obligation to support this woman and supported her during the life of her husband and afterwards until she left the place.
Walter Wright owned this land and his wife joined him in the deed and they had one of the appellants in their house and the other one in the other house on the land during the remainder of Walter Wright's life, and the only burden they had was to work the land and make a support for Walter and his wife and for his widow after he died.
They never did deny for one moment up to the time they took the stand in the lawsuit that they were fully alive to their obligation and they never denied it and never went back on it in any manner but proceeded to do their full duty to this woman; however, they told her kindly but firmly that there could be no Sullivan on that place. She clung to her mate and filed a lawsuit against these parties.
There are a number of pages devoted to the matter of inadequacy of description, etc., but I take it that when a man owns certain land and nobody is disputing his right to it and he has it in possession and he makes a deed to it and puts somebody else in possession that it does not rest with his heirs-at-law to come later and say that nothing was conveyed because there was an inadequate description to part of the land.
Agreement to maintain and support is legal. 18 C.J. pages 166 and 167. Also it holds that the question of adequacy of price is not in it.
"It is elemental that a valid conveyance presupposes a complete delivery. This does not mean a mere manual possession of the document of conveyance but transfer as by livery of seizin which constitutes a deliberate present investiture of title. Such purpose if expressed in the instrument is of course effected by manual delivery. We must therefore look to the terms of the instruments to find the rights of both the grantor and the grantees." The above quotation is a part of a paragraph from Palmer v. Reggs, 197 Miss. 260.
I refer to the case of Wynn v. Kendall, 122 Miss. 809, and this is a short case, but I think it will be sufficient to put in the two syllabi which I here quote: "Cancellation of instruments: Deed will not be set aside because grantor did not understand it, in absence of timely application.
"Where a deed given in consideration of the support of the grantor during life provides no lien, nor forfeiture on condition broken, or for failure to perform, but is absolutely in form, it will not be set aside, where no timely application was made, on the ground that the grantor did not understand the terms of the deed as written, where the deed was on record."
"Deeds: Deed for support of grantor not cancelled for breach of agreement to support.
"Where a deed is given in consideration of an agreement to support grantor, but containing no provision for forfeiture for failure to perform agreement, and reserving no lien in the deed to secure performance of consideration, it will not be cancelled in equity for failure to furnish support. Lowrey v. Lowrey, 111 Miss. 153, 71 So. 309; Lee v. McMorries, 107 Miss. 889, 66 So. 278, L.R.A. 1915 B 1069. Dixon v. Milling, 102 Miss. 449, 59 So. 804, 43 L.R.A. (N.S.) 916." This is also shown by the case of Batson v. Draughn, 11 So.2d, and the quotation from the case of Batson v. Draughn on page 204 of 11 So.2d: "Moreover, it is well settled that the failure of a grantee to perform a contractual obligation in a deed to support and maintain the grantor would not invalidate a conveyance but would only give rise to action for damages caused by the alleged breach thereof."
John Horan, for appellee and cross-appellant.
Point 1. The deed herein complained of describing the land as:
"All that part of the west half of the Northeast Quarter of Section 14, Township 24, Range 6 West, which lies and is situated East of what is known as Kenney's Branch running through said Quarter Section; and also part of the East Half of the Northeast Quarter of Section 14, Township 24, Range 6 East, being six acres; part of the Southeast Quarter of Northeast Quarter of Section 14, Township 24, Range 6 East. And that part of the East Half of the Northeast Quarter of Section 14, Township 24, Range 6 East, lying west of what is known as Kenney's Branch running through said Quarter Section; and also part of the East Half of the Southeast Quarter of the Southwest Quarter of Section 11, Township 24, Range 6 East, and the East Half of the Northwest Quarter of Section 14, Township 24, Range 6 East, and part of the Northeast Quarter of the Northwest Quarter of Section 14, Township 24, Range 6 East, being one acre, more or less, being that part of the homestead of the grantors as above described."
In such case the grantees could not take and hold the lands of the appellee and cross-appellant, because of the uncertain, indefinite, and inadequate description. Plenney v. Ferrell, 11 So. 506; Delk v. Hubbard, 153 Miss. 869, 120 So. 845; 2 C.J. 177, 179, 111; Lazar v. Caston, 67 Miss. 275, 7 So. 321; Ransom v. Young, 176 Miss. 194, 168 So. 473; W.C. Early Company v. Long, 89 Miss. 285, 42 So. 348; Patterson v. Morgan, 161 Miss. 808, 138 So. 362.
Point 2. The consideration for the remainder after a life estate, was for support to be furnished on the land conveyed. Such an instrument did not convey the present fee, and did not entitle the grantees to the present immediate possession, occupation and use of such land. 26 C.J.S. p. 490, Section 153; Ballenger v. Ballenger, 94 So. 127 (Ala.); Ates v. Ates; 189 Miss. 226, 196 So. 243; 26 C.J.S. Sec. 137, at page 439 and at page 451; Armstrong v. Bell, 199 Miss. 29, 24 So.2d 10; Hart v. Gardner, 74 Miss. 153, 20 So. 877; Section 264 Code 1942; Elph. Interp. Deeds, p. 216, Rule 65; Robinson v. Payne, 58 Miss. 692.
This is a suit brought by appellee to remove, as clouds upon her title, certain deeds held by appellants and, in the alternative, for right of possession and reasonable rents.
The facts are these: Appellee is the widow of Walter T. Wright, and during his lifetime they conveyed the lands in question, by separate deeds, to his brothers, the appellants. There was a reservation of a life estate and the remainder was granted upon condition of reasonable support of the grantors by the respective grantees. Later each of the appellants executed deeds back to the grantors, conveying their respective interests. Whereupon the original owners executed conveyances of certain timber and mineral interests.
On November 4, 1940, Walter T. Wright and his wife (who is now Mrs. Lura Wright Sullivan) for the second time, executed deeds to the appellants respectively to parts of the lands they owned. The pertinent provisions of these deeds is as follows:
"For and in consideration of the sum of One Dollar, cash in hand paid, and in consideration of the love and affection we have and bear to the grantees herein, and in further consideration of the said Monroe Wright and Isom W. Wright each one caring for and supporting each one of the grantors herein during the term of the natural lives of each grantor herein, said support to be such extent as is reasonable for the comfort of the grantors and consistent with the means and ability of the grantees herein, the home for the grantors to be kept and provided on the lands herein below described, we do now, reserving to ourselves a life estate in said lands, sell, convey and warrant the remainder thereof to the said Monroe M. Wright and Isom W. Wright in the following designated manner, to-wit:
"For the above consideration we sell, convey and warrant unto Monroe M. Wright, the remainder of the following described land, reserving to ourselves an estate therein during the term of our natural lives, . . ." Then follows a description of the lands so conveyed to Monroe M. Wright; also a similar conveyance of another part of their lands, under the same terms and conditions, to Isom W. Wright.
Mr. Walter T. Wright died in April, 1942. His widow, the appellee, prayed in her bill for cancellation of the last described deeds because of uncertainty in description, or in the alternative that she, as the owner of a life estate, be granted full and complete possession of said lands, together with reasonable rents thereon due by appellants who have occupied and used the same as a home.
The trial court held that the instrument dated November 4, 1940, conveyed only a remainder interest to the appellants respectively, and that appellee as the surviving widow retained a life estate. It was further decreed that the appellants were entitled to remain on the lands during the life of Mrs. Sullivan but were liable to her for rent thereof for six years at the rate of $50.00 per year. Support was fixed at $10.00 per month from and after the decree.
Appellants base their appeal upon all of the several awards to appellee and the latter files her cross-appeal upon the grounds that she was entitled to the exclusive possession during her lifetime; in the failure to cancel the two deeds; and the omission to award a decree for certain personalty allegedly appropriated.
(Hn 1) We find an asserted indefiniteness in part of the description no basis for cancellation by the grantor. Reformation is not sought by any of the parties. The same property — the identity of which is well known to all concerned — has been passed back and forth between these parties. In one of the conveyances, appellee described the land as being the lands then owned by her and her husband. After the death of Walter T. Wright, appellee executed a supplemental deed to correct an omission in the former descriptions. Appellee intended to convey the lands here involved. There was no fraud. Failure of support is not here made a basis for cancellation. We must leave the instruments as we find them.
The right of appellee to her life estate is joined to and is of equal validity and force with the rights of the appellants to their remainder. (Hn 2) A life estate during its existence is as effective to insure exclusive control and possession as is a title in fee. Bohn v. Bohn, 193 Miss. 122, 5 So.2d 429.
The claim of appellants to the right of occupancy, despite the widow's protest, is sought to be sustained by the following language in their deeds: "the home for the grantors to be kept and provided on the lands hereinbelow described". From the fact that the appellee and her husband had allowed appellants to live on the land for the purpose of ministering to him and assisting in supervising its cultivation, and from the language just quoted from the deed, the learned Chancellor deduced as a matter of law and of fact that "the defendants (appellants) have and hold a right to have and occupy a home on said lands to be selected by the complainant (appellee)". He found these circumstances the equivalent of a livery of seizin. (Hn 3) Title by adverse possession is not asserted by appellants. The only methods remaining by which an investiture of title or right of dominion could arise during an owner's life are by grant, estoppel, tax sale, or condemnation. White v. Turner, 197 Miss. 265, 19 So.2d 825. It is no answer that the convenience of appellants would be served if they could support appellee out of her own pantry.
(Hn 4) Although the right to a remainder is vested in appellants, they have no present rights of possession or occupancy save such as may be vouchsafed by appellee. She, having the right to exclusive possession, is entitled to the rents awarded by the trial judge. There was an issue of fact regarding the alleged appropriation of personalty. We find no error here. That the dissension arose out of personal feelings is not important. So far as appellants are concerned, the appellee can conduct herself and her household as pleases her best. We are dealing solely with property rights.
We therefore affirm the decree but with the modification — made appropriate by the cross-appeal — that appellee is entitled to the exclusive possession and control of the lands in suit and to such possessory writs as may be appropriate to secure such right.
Affirmed as modified.