Coulter v. Carter , 200 Miss. 135 ( 1946 )

DISSENTING OPINION. This instrument was signed, acknowledged and recorded as, and its makers died thinking it was, a deed, and it is manifest from its face that the grantors therein intended it to be such and by it to convey the land described therein to the grantee with a reservation to themselves of the use and occupation thereof "during their natural lives." This they had the right to do. Section 831, Code 1942; McDaniel v. Johns, 45 Miss. 632. And their intention should be given effect unless in attempting to express it they used words of such a fixed and technical contrary meaning as to prevent this from being done. Such is not the case.

The test as to whether an instrument is a deed or a will is whether the instrument itself takes effect before or after the death of the grantor. If the first, it is a deed, if the second, it is a will. The words in this instrument which are claimed to have the effect of preventing the instrument itself from becoming operative until after the death of the grantors are: "The grantors are to have the possession, control and occupancy of said lands during their natural lives, and at their death the title to said lands shall vest in the said Eliza Coulter, but not until the death of both grantors herein, does the title pass." The key and determinative word here is "title," which has various meanings dependent on the context in which it appears. In the law of real property it may mean possession, right of possession, or right of property, or all combined, depending also on the context in which it appears. It is clear to me that it was intended here to mean "right of possession," for it follows immediately after the reservation to the grantors of the right to the possession of the property prior to their death. That clause of the deed, when the word "title" is so defined as its context here demonstrates that it should be, is the equivalent of "it is understood between the parties hereto that the grantors are to have the possession, control and occupancy of said lands during their natural lives, and at their death the right of possession to said lands shall vest in the said Eliza Coulter, but not until the death of both grantors here, does the right of possession pass." Such was the meaning given to provisions in deeds to the effect that title to the land conveyed should vest in the grantee at, but not before, the death of the grantor in Hald v. Pearson, 197 Miss. 410, 20 So.2d 71; and Watts v. Watts, 198 Miss. 246, 22 So.2d 625. These cases, and this opinion, are fully supported by the following cases cited by counsel for the appellee, in which a similar provision as to the vesting of the title to the land conveyed appears, Wall v. Wall,30 Miss. 91, 64 Am. Dec. 147; Rogers v. Rogers (Miss.), 43 So. 434; Myers v. Viverett, 110 Miss. 334, 70 So. 449; Stubblefield v. Haywood, 123 Miss. 480, 86 So. 295; Johnson v. Seely,139 Miss. 60, 103 So. 499; Graham v. Triplett, 148 Miss. 299,114 So. 621; Carter v. Dabbs, 196 Miss. 692, 18 So.2d 747.

Mims v. Williams, 192 Miss. 866, 7 So.2d 822, relied on by counsel for the appellant, is in conflict with the later cases of Hald v. Pearson and Watts v. Watts, supra, is not supported on its facts by the cases therein cited and should not be followed here.

The decree of the court below should be affirmed.