Brewton v. Watson , 67 Ala. 121 ( 1880 )

BRICKELL, C. J.

— The important question of the cáse, which alone we deem it necessary to consider, is as to the character and operation of the instrument under which the appellées deduced title to the premises in controversy. If, as is insisted, it is a deed deriving operation from the statute of uses, it is not an objection to its validity that the estate of the grantee was not to arise and vest until the death of the grantor. In conveyances deriving their operation from the statute of uses, freehold estates may be made to commence in futuro; a fee may be limited on a fee, or an estate may be limited to take effect in abridgment or derogation of a preceding estate. — 2 Green. Cruise, 136; Horton v. Sledge, 29 Ala. 478; Simmons v. Augustine, 3 Port. 69.

But is the instrument a deed, or a mere agreement by which it is stipulated that in consideration of the performance of its covenants on her part, Mrs. Watson was entitled to the possession, rents and profits, of the premises during the life of Mrs. Browning, and on the death of the latter, was entitled, if the covenants had been performed, to title, not only to the premises, but to all other estate of Mrs. Browning, than her household furniture ? The latter is manifestly the character of the instrument, and if it is not so construed, the clearly expressed purposes of the parties could not be consummated. The instrument is styled articles of agreement, and purports to be made in consideration that Mrs. Watson will support and maintain Mrs. Browning during life, burying her decently at her death, performing other services for her, and would also pay the debts of Mrs. Browning, some of which are mentioned. It is signed by both parties, and is without a word of grant or conveyance. Taking the whole instrument together, the conclusion is irresistible that a covenant, upon the performance of which Mrs. Watson, during the life of Mrs. Browning, would be entitled to possession and to the rents and profits of the premises, and having performed, on the death of Mrs. Browning, should be- entitled to the title, was intended, and not a grant or conveyance of the title to take effect in futuro. There can bé no valid and operative conveyance of lands without some words of grant, or alienation. Formal, technical words, are not necessary; and when an intent that the estate shall pass is manifested, its words will, if possible, be so construed that it shall take effect. But the want of words cannot be supplied. The only words in the instrument which refer to the passing of title are, “and the said S. O. Watson, upon the faithful performance of her part of this contract,'shall have and be entitled to,. at and after the death of said E. A. Browning, all the property, both real and personal, now owned by the said E. A. Browning, with the income and increase thereof, excepting the household furniture belonging to her, none of which is sold or contracted away by these articles of agreement.” These are words of covenant, of contract, not of conveyance. — McKinney v. Settles, 31 Mo. 541; Chapman v. Glassell, 13 Ala. 50; Love v. Crook, 27 Ala. 624; 3 Wash. Real Prop. 329.

The legal estate in the lands residing in the intestate of the appellant at the time of her. death, entitles him to a recovery. If Mrs. Watson had fully performed the covenants of the instrument, in a court of equity she may compel a specific performance, obtaining the legal estate.

It is not necessary to point out the several rulings of the Circuit Court inconsistent with this view of the instrument. Because of them, the judgment is reversed and the cause remanded.