McAllister v. Honea , 71 Miss. 256 ( 1893 )

Cooper, J.,

delivered the opinion of the court.

Although the settlement between Mrs. Burkitt and Mrs. McAllister was evidently made necessary, and was, in fact, brought about by the action of the creditors of Mrs. Burkitt in pressing collection of their demands bj’’ suits, this does not of itself stamp that settlement as fraudulent, if in truth Mrs. Burkitt really owed Mrs. McAllister the amount for which she executed the note and deed of trust, and afterwards the absolute deed, which are assailed by complainant. The decisive question is whether the debt was a real debt and the. conveyance made in its honest payment. It is not suggested in the evidence that the value of the land exceeds the sum claimed to have been due, and, if it does not, and the debt was due, it would be difficult to predicate fraud of the conveyance. While the evidence touching the existence of the debt is not as complete as it might have been made if the parties themselves had testified, we are not prepared to say that the conclusion reached by the chancellor as to the good faith of the transaction is not correct. The decree on the appeal of Ilonea is therefore affirmed.

A part of the land conveyed by Mrs. Burkitt is described as the “ north half, less six acres, of section fourteen, township fourteen, range six east, in Monroe county, Mississippi.” This description the chancellor held void for uncertainty, and, since there had been no visible change of possession, he decreed that the lien of the judgments under which complainant purchased was superior to the right secured by Mrs. MeAllister by her deed from Mrs. Burkitt or by the deed of trust which had been previously executed, in which the same description of the land appeared. In this the chancellor erred. The ambiguity of description relates not to the land conveyed, but to the six acres excepted. The land conveyed is the north half of the section; the exception is of an undescribed six acres. An exception is a clause of a deed whereby the grantor excepts something out of that which-he had before granted by the deed, and to a good exception these things must concur: (1) The exception must be by apt-words ; (2) it must be of part of the thing granted, and not of some other thing; (3) it must be a part of the thing only, and not of all, the greater part or the effect of the thing granted; (4) it must be of such thing as is severable from the thing which is granted, and not of an inseparable incident ; (5) it must be such a thing as he that doth except may have and doth properly belong to him; (6) it must be of a particular thing out of a general, and not of a particular thing out of a particular thing, or of a part out of a certainty; (7) it must be certainly described and set down. Shep: Touchstone, 77. Being the act and word of the grautoi’, it shall therefore be taken against him stride. Id.; 10 Coke, 1066. If there be uncertainty as to the exception, the grantee, and not the grantor, shall have the benefit thereof. Jackson v. Hudson, 3 Johns., 375; Jackson v. Gardner, 8 Ib., 191; 2 Devlin on Deeds, 979. The exception, and not the deed as to the land in section fourteen, was void for uncertainty in the description of its subject-matter.

The decree is reversed upon the appeal of Mrs. McAllister, and it results that complainant is not entitled to any relief; wherefore, let his bill be dismissed.

Reversed, and bill dismissed.