I cannot agree with the conclusion of Mr. Justice SHARPE that the instrument of November 26, 1923, conveyed a presentinterest to plaintiff. Such instrument, in the form of a deed, expressly provided:
"The grantors herein reserve the right to occupy, use and enjoy all of said premises and property during the lives of said grantors, James Stanley Morton and Carrie Heath Morton, and the survivor thereof; that is to say, that no part of thisconveyance shall become effective until after the death of thegrantors above named. Upon the death of the survivor of saidgrantors, this instrument shall become immediately effective."
The question is: Did the instrument pass a then present interest to plaintiff, or was it testamentary in character, effective only after the death of the grantors?
The words used by the grantors in such instrument are clear and unambiguous, and leave no room for doubt as to their intended meaning. In interpreting the above-quoted paragraph that portion of *Page 478 the sentence preceding the semicolon and the part following the semicolon must be considered and construed together, because the words "that is to say" simply introduce another way of putting what has already been said. Fowler's Modern English Usage, p. 253, states that the words "that is to say" (the English equivalent of the Latin term i.e.) introduce "another way (more comprehensible to the hearer, driving home the speaker's point better, or otherwise preferable) of putting what has already been said." The grantors desired to make more comprehensible the meaning of the clause preceding the semicolon.
The grantors expressed themselves in plain and unambiguous language. As said in Broffee v. Le Fils, 183 Mich. 100, 107: "It would be hard to select fewer words to more aptly express the intention of the grantor." We should not go outside the instrument to seek a different intention or to supply an intention in contradiction with its terms. In MichiganChandelier Co. v. Morse, 297 Mich. 41, 49, Mr. Justice BOYLES said:
"The words themselves are not ambiguous or uncertain. We must look for the intent of the parties in the words used in the instrument. This court does not have the right to make a different contract for the parties or to look to extrinsic testimony to determine their intent when the words used by them are clear and unambiguous and have a definite meaning."
See, also, 12 Am. Jur. pp. 746-748; Paul v. University MotorSales Co., 283 Mich. 587; Dodson v. Dodson, 142 Mich. 586.
The acts and doings of the parties subsequent to the execution and delivery of the instrument could not change the clear import of the words used.
Under the provision "no part of this conveyance shall become effective until after the death of the *Page 479 grantors," the words of conveyance, which were a necessary partof the instrument, could not be operative until after the death of the grantors. Therefore, the instrument did not pass a present interest to plaintiff as grantee.
The following provisions of the instrument also express the clear intention of the grantors that it was not to become effective until after their death:
"For said considerations, parties of the first part hereby * * * transfer to said grantee (plaintiff) * * * all of the furnishings of said buildings then belonging to the parties of the first part (grantors). * * * This gift is intended to include the library in said home as it exists when this deed takeseffect. * * *
"They are well seized of the above-granted premises in fee simple; that they are free from all encumbrances whatever, and are subject only to the conditions subsequent hereinbefore expressly set forth."
This case is controlled by our decisions in Leonard v.Leonard, 145 Mich. 563, and Moody v. Macomber, 159 Mich. 657 (134 Am. St. Rep. 755), cited by Mr. Justice SHARPE. The provisions of the instruments construed in such cases were substantially the same as the provision of the instrument in the present case. In the Leonard Case, involving the question of whether the instrument was a deed passing a present interest, or was testamentary in character and, therefore, operative only after the death of the grantors, we said:
"The character of this instrument depends upon the effect given to the sentence:
"`This deed is not to be operative until after the death of the parties of the first part hereto.'
"The words used cannot be said to apply simply to the enjoyment and possession of the property, but *Page 480 to the entire force and effect of the instrument, and are repugnant to the creation of a present interest. * * *
"It is clear from the instrument itself and the expressions and acts of the makers at the time that it was testamentary in character, and intended so to be. * * *
"We can only say that where the words used, reasonably construed, do not pass a present interest, the instruments become the products of the courts, and not the grantors. Each case depends upon the peculiar wording of the instrument to be construed."
In the Moody Case the instrument, in the form of a deed, contained the following provision, p. 658:
"`This deed is not to become operative until the death of the grantor, named herein.'"
In holding that such instrument was testamentary in character and in fact a will, we said:
"Applying the foregoing rule (Gardner on Wills (1st Ed.), p. 24, quoted by Mr. Justice SHARPE) to the case at bar, we find that there is no ambiguity in the language used. * * *
"These words can have but one meaning, viz., that no interest passed to the grantee thereunder until the happening of the event described (death of grantor). It is manifest that the instrument cannot be inoperative, as provided by its terms, and at the same time operative, to convey a present interest to be enjoyed by the grantee, at the death of the grantor. * * *
"The instrument, though in form a deed, was in fact a will." (See cases cited on page 661.)
The two cases above discussed conclusively establish that the instrument involved in the present case was not a deed passing a present interest, but was, in legal effect, testamentary in character. *Page 481
In the present case it is argued that the delivery and recording of the instrument evidenced the intention of the grantors to pass a then present interest in the property. Such delivery and recording might have weight as evidencing intention if the instrument were ambiguous or uncertain in its terms. However, such delivery and recording have no weight in the instant case where the instrument clearly expresses the intention of the grantors and is testamentary in character. In Moody v.Macomber, supra, p. 661, we said:
"The instrument, though in form a deed, was in fact a will. We find no evidence in the record of the delivery of the instrument,but whether it was delivered or not is of no consequence if, infact, it was testamentary in character."
The clear legal import of the several provisions of the instrument in question is that it did not convey a present interest to plaintiff, but was to become operative only upon the death of the grantors and was, therefore, testamentary in character. Such instrument would not be effective as a testamentary devise of the property in question to plaintiff.
This being an ejectment action, plaintiff can recover only on the strength of its title, and not on the weakness of defendant's title. Brown v. Eckel, 259 Mich. 551. Plaintiff has failed to establish title and, therefore, cannot maintain the present ejectment action.
For the reason stated in this opinion, the judgment of no cause of action entered by the trial court should be affirmed. Defendants should recover costs.
CHANDLER, C.J., and BUTZEL, J., concurred with STARR, J. WIEST, J., did not sit. *Page 482