Cunningham v. Taylor

Mr. Chief Justice Shepard

delivered the opinion of the Court:

We have heretofore held that a deed, quite like this one in terms, vested but a life estate in the married woman for whose separate use it had been made, notwithstanding the grant of an estate in fee simple to the trustee. Dengel v. Brown, 1 App. D. C. 423-427. The surrounding circumstances in that case were different from those shown here. The deed was executed by Sarah Moore, the mother of the beneficiary, who on April 3 of the same year, made a will devising the same land to the beneficiary in fee simple. As the action to recover the land was by the heirs of Sarah Moore against parties claiming title under the beneficiary and devisee, the construction of the deed was comparatively unimportant, for the failure to obtain the fee by the deed was cured by the devise.

It has been contended on behalf of the appellees that the deed under consideration, through some slight difference in terminology, and in the light of the surrounding circumstances, should be held as vesting the fee simple estate in Susan Fitzgerald. If this contention be well taken, there would be no occasion for the bill, and it would probably have to be dismissed for that reason alone. Welden v. Stickney, 1 App. D. C. 343-348. In that view, too, the bill should be one to remove cloud from title. The present bill is for an entirely different purpose. Accepting the conclusion that the deed, on its face, conveyed but a life estate, it prays its correction by the insertion of words expressly conveying the fee, upon the allegation that such was the purpose of both grantors and grantee, —a purpose that was thwarted by the mistake of the scrivener, which mistake was not discovered by either party until the attempted sale by the trustee for partition.

Assuming, without necessarily deciding, that the deed to Poulton, trustee, on its face creates but a life estate in the beneficiary, Susan Fitzgerald, we pass to the consideration of the facts and circumstances relied on to show mistake on the part of the scrivener. We are of the opinion that these are sufficient to support the decree for correction. Having been substantially set forth in the statement of the case, there is no occasion to repeat them. The object and circumstances of the purchase, the consideration paid, indicate quite clearly that the grantors intended to sell, and the grantee to purchase, the fee-simple estate. The subsequent conduct of the parties confirms this. The grantee made valuable improvements that would hardly have been made by a reasonably prudent person upon property held for life only. The grantors remained in the community, and were frequent visitors of Susan Fitzgerald. They saw the valuable improvements that she was making. Both were present when Poulton, trustee, made the conveyance of the legal estate to her in fee. One of them was living when Mrs. Fitzgerald sold part of the premises and conveyed the fee-simple estate therein. The scrivener, since deceased, was not a lawyer, and must have thought that the recitáis of the deed were ample to pass the entire estate. The care with which he made the. grant to the trustee and his heirs for the separate use of the beneficiary forever indicates' his intention. During all the years that intervened between the execution of the deed and their death, neither of the grantors ever intimated to anyone that they claimed the reversion of the estate. Their children were unaware of any such claim, and set up none until five years after the death of Mrs. Fitzgerald, when the purport of the deed was made known to them, as it was for the first time to the former trustee, Poulton, and the children of Mrs. Fitzgerald, by the objection raised to the title by the attorney of an intending purchaser.

The right to ask for a correction of the deed is-not barred by laches of the appellees.

The possession was in their devisor until her death, and was succeeded to by them thereupon, without adverse claim or disturbance.

They did not know, and could not reasonably have known of the mistake in the deed until the objection was raised; and then they promptly filed their suit.

The decree is right, and will be affirmed, with costs.

Affirmed.