Daily Development for Monday, July 23, 2001
By: Patrick A.
Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
COTENANCIES; CREATION; DEED: Deed on its face clearly conveyed entire interest of husband and wife to wife and two sons, resulting in one third interest each; attorneys' fees on partition not allowed where there was also a controversy concerning respective interests in partited property. Ex Parte Martin, 775 So.2d 202 (Ala.2000).
The contested language read as follows:
". . . William Howard Martin and his wife, Marjorie I. Martin (herein referred to as grantors) do grant, bargain, sell and convey unto Marjorie I. Martin, James Ruben Martin and Michael Edward Martin . . . for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple, together with every contingent remainder and right of reversion, the following described real estate...." Marjorie later asserted that she had not intended to convey her one half interest under the deed, but only had joined in the transfer of William's one half interest. The trial court had admitted evidence of her intent, and had found for her construction of the deed. The Court of Appeals, finding the deed to be ambiguous, had concluded that extrinsic evidence of intent was appropriate, and thus affirmed.
On appeal to the Alabama Supreme Court: held: reversed. Although the court noted that the function of the court is to apply the true intent of the parties, it held that the best evidence of the parties' intent as of the time of the deed was the evidence of the written deed itself. Only when that evidence still leaves uncertainty as to the nature of the Interest conveyed will the parties turn to other evidence. Here, in the view of the Supreme Court, the language unambiguously transferred the interests of both husband and wife to a three way joint tenancy of which the wife was a party.
Comment 1: These kinds of cases are "full employment for good real estate lawyers" cases. A classic technical decision carrying out an important policy predictability and certainty of title by uniform construction of formal language.
Unfortunately, cases such as this demonstrate as well that bad real estate lawyers often get involved in transactions improperly. The deed had one small ambiguity the use of the term "either" rather than the term "any" in the description of the survivorship. But this ambiguity had nothing to do with the problem that the wife was asserting. Aside from that one problem, the language was clear. Based upon the conclusions of the trial court and the court of appeals, this language was not consistent with the desires of one of the grantors. If the deed did not carry out the granting intent of the wife, and a lawyer drafted it, then that lawyer may have been guilty of serious malpractice.
Comment 2: The case does not elaborate on the circumstances surrounding the execution of this deed, but it is important to note that married couples frequently transact business by using only one of them as the representative of their desires. If this was the case, then Perhaps there was no malpractice because the lawyer relied upon the husband's expression of the couple's wishes. But in general it is good practice for a lawyer who drafts a deed of jointly held property to make personal contact with both his clients to Ascertain that there is no conflict and that the lawyer really understands the intent of each of the grantors. Otherwise, the lawyer is just inviting misunderstandings and problems such as those described.
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