Brown v. Jackson/Opinion of the Court

In this case the question of fact, whether the deed of Henry Lee to Adam Craig was duly executed on the day it bears date, was left by the court to the jury, and upon the evidence, they properly found a verdict in favour of that deed, as an existing deed at that time.

The material question for the consideration of this court is, whether, under the circumstances of this case, the deed of Henry Lee to Henry Banks, which was executed after, but recorded before, the deed of Lee to Craig has a priority over the latter.

This depends upon the construction of the terms of the conveyance from Lee to Banks; for if it conveys the same land as the deed to Craig, then the parties claiming under it, being bona fide purchasers, without notice of Craig's deed, are by law deemed to possess the better title.

It is necessary to bear in mind, that Alexander Skinner, by his will, devised all his real estate to Lee, and that Lee, by his deed to Craig, conveyed the tract of land in controversy, specifically by metes and boundary, describing himself as devisee of Skinner. By his deed to Banks, he grants 'all the right, title and claim, which he the said Alexander Skinner had, and all the right, title, and interest which the said Lee holds as legatee and representative to the said Alexander Skinner, deceased, of all land, lying and being within the state of Kentucky, which cannot at this time be particularly described, whether they be by deed, patent, mortgage, survey, location, contract, or otherwise;' and then follows a covenant of war ranty against all persons claiming under Lee, his heirs and assigns.

A conveyance of the right, title, and interest in land, is certainly sufficient to pass the land itself, if the party conveying has an estate therein at the time of the conveyance; but it passes no estate which was not then possessed by the party. If the deed to Banks had stopped after the words-'all the right, title and claim which Alexander Skinner had,' there might be strong ground to contend, that it embraced all the lands to which Alexander Skinner had any right, title, or claim, at the time of his death, and thus have included the lands in controversy. But the court is of opinion, that those words are qualified by the succeeding clause, which limits the conveyance to the right, title, and claim, which Alexander Skinner had at the time of his decease, and which Lee also held at the time of his conveyance, and coupling both clauses together, the conveyance operated only upon lands, the right, title, and interest of which was then in Lee, and which he derived from Skinner. This construction is, in the opinion of the court, a reasonable one, founded on the apparent intent of the parties, and corroborated by the terms of the covenant of warranty. Upon any other construction, the deed must be deemed a fraud upon the prior purchaser; but in this way both deeds may well stand together, consistently with the innocence of all parties.

Judgment affirmed.