Johnson v. Seely , 139 Miss. 60 ( 1925 )

^* Headnotes 1. Wills, 40 Cyc., p. 1085; 2. Deeds, 18 C.J., Sections 286, 365. This suit involves the question of title to seventy acres of land conveyed to the appellees in an instrument to be hereinafter set out, and the determination of the question depends upon whether the instrument is a deed or a will. If it is a deed, then the appellees must prevail in title; on the other hand, if it is an instrument testamentary in character, it is void, and the appellant must prevail.

We here set out the instrument in full, which reads as follows:

"Elizabeth Lang to Mary Eliza Seely. Deed.

"The State of Mississippi, Lowndes County.

"This deed of gift and conveyance made this the day and date hereinafter written, witnesseth, that I, Elizabeth Lang, for and in consideration of the natural love and affection which I have for my daughter, Mary Eliza Seely, I do hereby and now stand seized to the use of my said daughter and do convey and enfeoff my said daughter with the following described land, to-wit: The eighty acres of land lying in section eight (8), township nineteen (19), range seventeen (17) west, said land being particularly described in the deed conveying said land to me by W.S. Newby on the 7th day of December, A.D. 1901, which deed so made to me by W.S. Newby is recorded in Deed Book 83, page 252, of the Records of Deeds for Lowndes County, Mississippi, in which county all of said land is situated. But I except from this conveyance the ten acres of land this day conveyed to Balma Colvin, the said ten acres being part of the eighty acres above conveyed. I also stand seized to the use of, on the above mentioned consideration, and convey to my said daughter all the property of every kind which I may die seized and possessed of or may own at the time of my death. To have and to hold unto the said Mary Eliza Seely (after my death, and this conveyance is not to take effect in possession and personally only until after my death, having and retaining all ownership and use of all said property during my life), and unto the heirs of the body of the said Mary Eliza Seely in strict entail forever, it being the intention hereof that the inheritance shall be subject to the limitations of an entail, and only vest free of such limitation in the children of the said Mary Elizabeth Seely as they respectively become of age of twenty-one years.

"In testimony and confirmation of all which, witness my hand this 7th day of January, A.D. 1904.

her "ELIZABETH X LANG." mark

The only controversy before us is with reference to the eighty-acres (less ten acres) in section 8, township 19, range 17 west. The decision of the chancellor with reference to any other property mentioned in the instrument is not complained of on the appeal, and therefore we shall consider and dispose of the question only as to the seventy-acres involved.

We think the instrument is a deed, and conveys in praesenti the remainder estate to appellee, the possession and enjoyment to take effect at the death of the grantor. It seems clear to us that the grantor intended to convey title to the grantee, with the reservation of the use and possession in the grantor during her life. The instrument is designated as a deed, acknowledged, delivered, and recorded, is not testamentary in character, and is a valid conveyance of the fee in remainder.

Such a conveyance, wherein the grantor reserves the right of possession and use during her life, is authorized under the laws of our state, and is a present passing of the remainder. SeeMcDaniel v. Johns, 45 Miss. 632. The land in this case is specifically described, and the title to the remainder estate in it was intended to be conveyed upon the execution and delivery of the deed. The instrument was not testamentary, because the title had passed to the remainderman before the death of the grantor, and it only remained for the grantee to take the possession and enjoyment at the death of the grantor.

In view of the conclusion reached, the decree of the lower court is affirmed.

Affirmed.