Opinion
8 Div. 840.
March 24, 1927. Rehearing Denied June 2, 1927.
Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.
G. O. Chenault, of Albany, and Cooper Cooper, of Huntsville, for appellant.
The whole instrument will be considered together to ascertain the intention of the grantor. CarlLee v. Ellsberry, 82 Ark. 209, 101 S.W. 407, 12 L.R.A. (N.S.) 956, 118 Am. St. Rep. 60; Campbell v. Noble, 110 Ala. 394, 19 So. 28. Effect will be given to subsequent clauses in a deed curtailing the estate granted in the granting clause, provided the intention of the grantor to do so appears. Adams v. Merrill, 45 Ind. App. 315, 85 N.E. 114, 87 N.E. 36; Kendall v. Parsons, 81 Kan. 192, 105 P. 25; Williams v. Grimm (Ky.) 112 S.W. 839; Condor v. Secrest, 149 N.C. 201. 62 S.E. 921; Bassett v. Budlong, 77 Mich. 338, 43 N.W. 984, 18 Am. St. Rep. 404.
E. W. Godbey, of Decatur, for appellee.
The granting clause is unequivocal and clear in vesting a fee-simple title in Torian, Jr., and dominates the habendum clause. Coker v. Hughes, 205 Ala. 344, 87 So. 321; Self v. Self, 212 Ala. 514, 103 So. 591. If it is doubtful which Torian is meant by the concluding clause, that clause will not be allowed to contradict the certain words of preceding clauses. Head v. Hunnicutt, 172 Ala. 48, 55 So. 161. If the habendum attempts to limit the estate to a life estate, then it is in irreconcilable conflict with the granting clause. Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A. (N.S.) 719. It was the clear intention to vest a fee-simple estate in Torian, Jr., in case he should marry. Day v. Shiver, 137 Ala. 185, 33 So. 831. A construction of the deed, which would destroy the fee simple in Torian, Jr., and revert it to the grantor, on the occasion of the marriage of Torian, Jr., would be in restraint of marriage and void. White v. Equitable Union, 76 Ala. 259, 52 Am. Rep. 325; Knost v. Knost, 229 Mo. 170, 129 S.W. 665, 49 L.R.A. (N.S.) 627; Lowe v. Doremus, 84 N.J. Law, 658, 87 A. 459, 49 L.R.A. (N.S.) 632; Hogan v. Curtin, 88 N.Y. 162, 42 Am. Rep. 244; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548.
The action is in statutory ejectment, and the determination of title as between the parties depends upon the construction to be given to the deed upon which plaintiff relies.
The grantor in the deed was S. T. Torian, Sr., and the grantee is S. T. Torian, Jr., the plaintiff in this suit. The grantor was a widower with two children, one son, the plaintiff, and one daughter, the defendant. When the deed was executed in February, 1919, the son was unmarried, but was married in August, 1920. The grantor died in February, 1924.
The plain intention and unmistakable effect of the deed, apart from the disputed clause to be presently considered, was to vest in the grantor's son, S. T. Torian, Jr., a present estate in the land, to take effect in possession upon the death of the grantor, and to be limited to the grantee's own lifetime.
Where the granting clause conveys a fee-simple estate, not in express terms but by implication of law merely, as in this deed, a limitation on the estate granted may be effectively declared in the habendum or any other part of the deed. In such a case there is no conflict between the grant and the limitation. Riggin v. Love, 72 Ill. 553; note, 8 Ann. Cas. 446. Hence the limitation of the interest here conveyed to a life estate in the grantee was valid and effective, except as it may have been enlarged or diminished by other clauses of the deed.
After declaring that "all the land here conveyed to the said S. T. Torian, Jr., shall vest in him for life only, with the remainder in his heirs but with no power in the said S. T. Torian, Jr., to sell or mortgage said land or his life estate in the same," the grantor declares further: "Should the said S. T. Torian, Jr., marry, then and in that event the title to all the land here conveyed shall vest in the said S. T. Torian. To have and to hold to him, his heirs and assigns in fee simple forever."
Plaintiff's contention is that this clause enlarged his interest, upon his subsequent marriage, into a fee-simple estate, "the said S. T. Torian," in whom the title is then to vest, being the same person designated just above as S. T. Torian, Jr. Defendant's contention is that the clause in question diminished the grantee's estate by imposing upon it a conditional limitation, upon the happening of which the estate previously granted was extinguished, the theory being that the omission of the suffix, "Jr.," from "S. T. Torian," indicates the designation of S. T. Torian, Sr., as the person in whom the forfeited estate was to vest.
We entertain no doubt of the correctness of the construction in favor of plaintiff.
1. The general purpose of the grantor was to give the title and use of the property to his son the grantee, excepting the life estate reserved to himself.
2. To provide for a forfeiture of all interest in the land in case of the grantee's marriage would have been contrary, not only to general legal and social policy (8 R. C. L. 1118, § 180), but to the ordinary and natural sentiments of a father looking to the establishment of a home for his son and the well-being of his family, consequent upon his assumption of the marriage relation. In such an event, every consideration of sentiment and policy would suggest the enlargement of the very limited estate granted, rather than the penalty of its complete extinction and loss.
3. "The word Junior, or Jr., or words of similar import, are ordinarily mere matters of description, and no part of a person's legal name." Teague v. State, 144 Ala. 42, 40 So. 312; Coit v. Starkweather, 8 Conn. 290; State v. Grant, 22 Me. 171; Jameson v. Isaacs, 12 Vt. 611.
The only object in describing the grantee as "S. T. Torian, Jr.," was to indicate to the uninformed that there was a junior, and render his identification, as the grantee intended, the more certain on the face of the deed. Having been once clearly identified by the descriptive word "Jr.," it was not necessary for certainty that the word be afterwards repeated, no other S. T. Torian having been referred to in the deed.
4. The word "said" is a relative word, and, nothing to the contrary appearing, it ordinarily refers to its next appropriate antecedent, and not to one more remote. Carver v. Carver, 97 Ind. 497, 502; Hinrichsen v. Hinrichsen, 172 Ill. 462, 50 N.E. 135; Ellis v. Horine's, etc., 8 Ky. (1 A. K. Marsh.) 417; Brown v. State, 28 Tex. App. 379, 13 S.W. 150, 151; 7 Words and Phrases, p. 6285.
At the beginning of the deed the grantor refers to himself, in the first person, as "I, S. T. Torian," and thereafter speaks throughout the deed in the first person only, and never refers to himself in the third person as S. T. Torian. This is very significant, so significant, in fact, as to forbid the conclusion that "the said S. T. Torian" in this clause related to "I, S. T. Torian" in the first line of the deed, thus overleaping the immediate antecedents of "S. T. Torian, Jr.," to which it more naturally and fitly relates, and also assuming that the grantor, in that clause alone, adopted a new and different mode of speech by referring to himself in the third person.
5. The language of the clause is apt for the conveyance of title to another, and wholly inappropriate for the reservation of a reversion, or the declaration of a forfeiture, in favor of the grantor. To accomplish the latter purpose the habendum would not have been used either by an expert or an ignorant scrivener; for this habendum, "To have and to hold to him [the said S. T. Torian], his heirs and assigns in fee simple forever," by its very terms imports an alienation, and cannot be referable to the grantor himself.
Other considerations might be urged, but we think the foregoing are sufficient to sustain the ruling of the trial court in the admission of this deed to show title in the plaintiff. It results that the jury were properly instructed to find for the plaintiff, and the judgment will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
On Rehearing.
As a background for the argument presented on application for rehearing, counsel for appellant recite many matters which are not disclosed by the record, and which therefore could not be considered even if they were otherwise proper for consideration as an aid to the construction of the deed before us.
We note that counsel, in their argument as to the purpose and effect of the deed, drop naturally and inevitably into the phrases which are usual for effecting a reversion or a forfeiture of an estate granted, and which, if they had been used in this deed, would certainly have left no doubt as to the grantor's intention. Counsel say that the grantor's desire was to make a deed to his son with the provision that "in the event the son marries the title shall revert to the grantor"; and that a father may lawfully make a deed to his son with the limitation that "the title shall be divested in the event of marriage"; and "he does not wish him to marry, but if he does he merely forfeits his rights to the property." It is inconceivable that a trained conveyancer, properly instructed to declare a reversion, or a forfeiture, or a divestiture of the son's life estate, in the event of his marriage, should have missed all of these plain and commonly used expressions, and instead used words of grant and alienation — words appropriate only to the investiture of title in another. There is not a syllable in the deed, nor in the record before us, suggestive of the grantor's opposition to his son's marriage. There is nothing unusual in the granting of a life estate to a son, with provision for its enlargement into a fee simple upon his marriage.
Appellant's argument is rested as it can only be rested, upon the assumption that "S. T. Torian" in the deed is used only in the designation of the grantor, S. T. Torian, Sr., and that S. T. Torian, Jr., is uniformly throughout the deed designated as "S. T. Torian, Jr." But the argument breaks down completely in view of the fact, evidently overlooked by counsel, that in the second paragraph of the deed, referring to the four acres of land in which S. T. Torian, Jr., had been given a one-half interest, and his sister, Helen Torian Ward, also a one-half interest, "with the right vested in the said S. T. Torian, Jr., to purchase the interest of his sister * * * in said four (4) acres of land for the sum of two hundred ($200.00) dollars," there immediately follows: "Upon the payment of which said sum of $200.00 by the said S. T. Torian to the said Helen T. Ward, the fee simple interest of the entire four acres shall vest in the said S. T. Torian, Jr." Manifestly and indisputably the grantee, the Junior, is here referred to simply as "S. T. Torian"; "the said S. T. Torian" being applicable to the preceding "S. T. Torian, Jr.," and the succeeding "S. T. Torian, Jr.," being applicable to the preceding "S. T. Torian."
Our re-examination of the deed confirms us in the conclusion originally expressed, and the application for rehearing will be overruled.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.