Ward v. Torian , 216 Ala. 288 ( 1927 )

The action is in statutory ejectment, and the determination of title as between the parties depends upon the construction to be given to the deed upon which plaintiff relies.

The grantor in the deed was S. T. Torian, Sr., and the grantee is S. T. Torian, Jr., the plaintiff in this suit. The grantor was a widower with two children, one son, the plaintiff, and one daughter, the defendant. When the deed was executed in February, 1919, the son was unmarried, but was married in August, 1920. The grantor died in February, 1924.

The plain intention and unmistakable effect of the deed, apart from the disputed clause to be presently considered, was to vest in the grantor's son, S. T. Torian, Jr., a present estate in the land, to take effect in possession upon the death of the grantor, and to be limited to the grantee's own lifetime.

Where the granting clause conveys a fee-simple estate, not in express terms but by implication of law merely, as in this deed, a limitation on the estate granted may be effectively declared in the habendum or any other part of the deed. In such a case there is no conflict between the grant and the limitation. Riggin v. Love, 72 Ill. 553; note, 8 Ann. Cas. 446. Hence the limitation of the interest here conveyed to a life estate in the grantee was valid and effective, except as it may have been enlarged or diminished by other clauses of the deed.

After declaring that "all the land here conveyed to the said S. T. Torian, Jr., shall vest in him for life only, with the remainder in his heirs but with no power in the said S. T. Torian, Jr., to sell or mortgage said land or his life estate in the same," the grantor declares further: "Should the said S. T. Torian, Jr., marry, then and in that event the title to all the land here conveyed shall vest in the said S. T. Torian. To have and to hold to him, his heirs and assigns in fee simple forever."

Plaintiff's contention is that this clause enlarged his interest, upon his subsequent marriage, into a fee-simple estate, "the said S. T. Torian," in whom the title is then to vest, being the same person designated just above as S. T. Torian, Jr. Defendant's contention is that the clause in question diminished the grantee's estate by imposing upon it a conditional limitation, upon the happening of which the estate previously granted was extinguished, the theory being that the omission of the suffix, "Jr.," from "S. T. Torian," indicates the designation of S. T. Torian, Sr., as the person in whom the forfeited estate was to vest.

We entertain no doubt of the correctness of the construction in favor of plaintiff.

1. The general purpose of the grantor was to give the title and use of the property to his son the grantee, excepting the life estate reserved to himself.

2. To provide for a forfeiture of all interest in the land in case of the grantee's marriage would have been contrary, not only to general legal and social policy (8 R. C. L. 1118, § 180), but to the ordinary and natural sentiments of a father looking to the establishment of a home for his son and the well-being of his family, consequent upon his assumption of the marriage relation. In such an event, every consideration of sentiment and policy would suggest the enlargement of the very limited estate granted, rather than the penalty of its complete extinction and loss.

3. "The word Junior, or Jr., or words of similar import, are ordinarily mere matters of description, and no part of a person's legal name." Teague v. State, 144 Ala. 42, 40 So. 312; Coit v. Starkweather, 8 Conn. 290; State v. Grant, 22 Me. 171; Jameson v. Isaacs, 12 Vt. 611.

The only object in describing the grantee as "S. T. Torian, Jr.," was to indicate to the uninformed that there was a junior, and render his identification, as the grantee intended, the more certain on the face of the deed. Having been once clearly identified by the descriptive word "Jr.," it was not necessary for certainty that the word be afterwards repeated, no other S. T. Torian having been referred to in the deed.

4. The word "said" is a relative word, and, nothing to the contrary appearing, it ordinarily refers to its next appropriate antecedent, and not to one more remote. Carver v. Carver, 97 Ind. 497, 502; Hinrichsen v. Hinrichsen, 172 Ill. 462,50 N.E. 135; Ellis v. Horine's, etc., 8 Ky. (1 A. K. Marsh.) 417; Brown v. State, 28 Tex. App. 379, 13 S.W. 150,151; 7 Words and Phrases, p. 6285.

At the beginning of the deed the grantor refers to himself, in the first person, as "I, S. T. Torian," and thereafter speaks throughout the deed in the first person only, and never refers to himself in the third person as S. T. Torian. This is very significant, so significant, in fact, as to forbid the conclusion that "the said S. T. Torian" in this clause related to "I, S. T. Torian" in the first line of the deed, thus overleaping the immediate antecedents of "S. T. Torian, Jr.," to which it more naturally and fitly relates, and also assuming that the grantor, in that clause alone, adopted a new and different mode of speech by referring to himself in the third person.

5. The language of the clause is apt for the conveyance of title to another, and wholly inappropriate for the reservation of a reversion, or the declaration of a forfeiture, in favor of the grantor. To accomplish the latter purpose the habendum would not have been used either by an expert or an ignorant scrivener; for this habendum, "To have and to hold to him [the said S. T. Torian], his heirs and assigns in fee simple forever," by its very terms imports an alienation, and cannot be referable to the grantor himself.

Other considerations might be urged, but we think the foregoing are sufficient to sustain the ruling of the trial court in the admission of this deed to show title in the plaintiff. It results that the jury were properly instructed to find for the plaintiff, and the judgment will therefore be affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.

On Rehearing.