Clark v. Cammack , 216 Ala. 346 ( 1927 )

The bill is framed under the statute to quiet title to lands. Code of 1923, § 9905. It contains all the statutory averments and prayer, but proceeds to further set forth the title of complainant and that claimed or reputed to be owned by respondent. A demurrer challenges the title in fee asserted by complainant. The appeal is from a decree overruling the demurrer.

The case made by the bill is briefly this: In 1922 Mrs. Martha O. Cammack, upon a recited consideration of $1 and other good and valuable considerations, conveyed by deed two lots in Tuscumbia, Ala., to her daughter "Martha Louise Cammack Clark and the heirs of her body forever." The same language is employed in the granting clause, the habendum clause, and covenants of warranty. No other words descriptive of the persons to take, nor the nature of the estate conveyed, appear in the conveyance. At the time the deed was made, Mrs. Clark had one infant son, Warren Hilliard Clark, the respondent. In 1926 she conveyed a portion of one of the lots by warranty deed to the complainant, William Cammack. The aim of the suit is to determine whether Mrs. Clark took a fee under the deed from her mother, or whether her child took an interest in the property.

In our opinion the case comes directly within the law of estates tail at common law, converted by our statute into a fee-simple estate in the first taker. Code, § 6901; Gilchrist v. Butler, 214 Ala. 289, 107 So. 838; Shuttle Weaver v. Barker, 178 Ala. 372, 60 So. 157; Slayton v. Blount, 93 Ala. 575,9 So. 241; Smith v. Greer, 88 Ala. 414, 6 So. 911; Young v. Kinnebrew, 36 Ala. 97; Rosenau v. Childress, 111 Ala. 214,20 So. 95.

We accord full authority to the line of cases wherein "heirs of the body" have been read to mean children, so as to let in children living at the time of the grant as tenants in common, or to take in remainder as the case may be. Such construction must always find support in other terms or provisions of the deed or will. Unskillfulness in the draftsman disclosing a lack of knowledge of the meaning of legal phrases is to be considered in connection with the language of the entire instrument to ascertain the intent. Sullivan v. McLaughlin,99 Ala. 60, 11 So. 447; Wikle v. McGraw, 91 Ala. 632, 8 So. 341; May v. Ritchie, 65 Ala. 602; Williams v. McConico, 36 Ala. 22. But such rule is not applied where the instrument furnishes no means of interpretation other than the legal meaning of its terms.

The deed to Mrs. Clark purports to have been made and acknowledged at Memphis, Tenn. The acknowledgment is certified by a notary public in Tennessee form. Appellant suggests this discloses want of legal knowledge and skill as to the application of the laws of Alabama to the execution and construction of the conveyance. We do not see how this furnishes any basis for a different construction of the conveyance. If we assume the parties used the terms employed in the deed in the same sense as in conveyances of Tennessee lands, the case would not be different. Presuming the common law to be in force in that state, such assumption implies the parties intended to create an estate tail. If so, Alabama law governing the conveyance converts it into a fee simple estate. We may here remark, however, that the Tennessee law as defined by judicial decision appears to be the same as in Alabama. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207.

The trial court correctly held that the deed to Mrs. Clark passed to her a fee-simple title.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.