The determination of the matter in controversy in this case may he said to depend mainly upon the nature of the instrument of April 18, 1882. If it be not a deed of conveyance but an executory contract, which was fulfilled by the deed of November I, 1888, there is no error in the decree of the Circuit Court.
The instrument referred to has many of the characteristics of a deed of conveyance. It begins with the words, “ This indenture,” instead of “ This agreement,” or “ This contract,” which are the words generally used, where only a contract is intended. It also contains the operative words of a conveyance, “ have granted, bai’gained, sold * * * conveyed, and by these presents do' grant, bargain, sell * * * convey,” certain interests in the five tracts of land therein described.
In derogation of these characteristics of a conveyance, it specifies that, as “ to this last named tract (to-wit, tract !No. 5), the said Mills and wife give a special warranty deed, but to all the other tracts named a general warranty deed is to be made.” It then concludes with a formal clause __of general warranty of the title to all five tracts.
It is a rule of construction that, though a deed may in one part use the formal and apt words of a conveyance, yet if, from other parts of the instrument 'taken and compared together, it appears that a mere agreement for a conveyance was all that was intended, the intent shall prevail, for the intent, and not the words, is the essence of every agreement. Jackson v. Myers, *4143 Johns. 388; Jackson v. Moncrief, 5 Wend. 26; Williams v. Paine, 169 U. S. 55; and Chapman v. Glassell, 13 Ala. 50; s. c., 48 Amer. Dec. 41.
In Williams v. Payne, supra, Mr. Justice Peckham, speaking for the court, said: “We agree generally that, although there are words of conveyance in praesenti in a contract for the purchase and sale of lands, still if, from the whole instrument, it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey, and not a conveyance. The whole question is one of intention, to be gathered from the instrument itself.”
And in a note to the case of Chapman v. Glassell, supra, p. 45, the learned annotator thus states the law: “ Words of present grant or present assurance, such as ‘have granted, bargained, sold, aliened, enfeoffed, released, and confirmed/ and words of like import, afford a presumption that an executed conveyance was intended, and that the title passed. But that presumption is not conclusive. Instruments containing these words are to be construed and interpreted the same as other instruments, and the presumption arising from the words themselves may be overcome by the presence in the instrument of other words which contemplate a future conveyance.”
Considering the whole of the instrument of April 18, 1882, and applying the recognized rule of construction, I am of opinion that it was only intended as an agreement for the sale of certain lands, and not a deed of conveyance. The words, “but to all the other tracts named a general warranty deed is to be made,” plainly manifest that the parties contemplated that a future conveyance was to be made.
The instrument of April 18, 1882, affords other evidence, especially when considered hi connection with the deed of November 7, 1883, which tends to support this view, and will be briefly adverted to.
. The appellant claims title to the lands in controversy through *415and under the instrument of April 18, 1882, and through and under the deed of November I, 1883, and rests its claim thereto upon the contention that the former, as well as the latter, is a deed of conveyance, and that they convey distinct interests in the said lands.
The instrument of April 18,. 1882, purports, in the granting part, that J. B. E. Mills and wife convey to W. D. Jones and Joseph B. Altemus, among interests in other lands, one undivided half interest in the “ Elkins ” tract of land, containing about one hundred and fifty acres, and one-half of seven-tenths of the tract of about six hundred and fifty acres on Walden’s Bidge, called the “ Wells ” patent.
The deed of November 1, 1883, from Mills and wife, conveys to the same parties interests in the same lands, and specifies that it conveys one undivided half interest in the “ Elkins ” tract of land, containing one hundred and fourteen acres, one-half of which (fifty-seven acres only) is thereby conveyed, and thirteen-twentieths of the tract on Walden’s Bidge (the “ Wells ” patent), containing six hundred and forty-two acres, of which only four hundred and seventeen acres are conveyed.
It thus appears that in the instrument of April 18, 1882, the description of the lands is in very general terms, and the quantity of each tract not accurately stated, but merely said to contain about so many acres.
In the deed of November I, 1883, these same lands are fully described by metes and bounds, and the acreage of each accurately given. They had then been surveyed, and the “ Elkins ” tract, which was supposed to contain about one hundred and fifty acres, had been ascertained to contain only one hundred and fourteen acres, and the “Wells” land, instead of six hundred and fifty acres, was found to contain six hundred and forty-two acres.
The original instrument is not in evidence, but it appears from a certified copy thereof, made from the deed book in the *416clerk’s office of the county court of Wise county and filed in the record, that though recorded, it was not acknowledged as is required of deeds of conveyance and other writings that are intended to be admitted to record, but was simply witnessed as to J. B. E. Mills, though not as to his wife; while the deed of November 7, 1883, recites the payment of. the purchase money, was duly acknowledged by the grantors for admission to record, and recorded.
Moreover, the deed of November 7, 1883, makes not the slightest reference to the writing of April 18, 1882, but wholly ignores it. It contains no statement or intimation that the interests conveyed by it are other and additional interests to those embraced in the instrument of April 18, 1882. If the latter was intended as a conveyance of the interests therein mentioned, it would have been most natural to have referred to. it in the deed of November 7, 1883, and specified that the interest thereby conveyed was the remaining moiety pf the “ Elkins ” or one hundred and fourteen acre tract, and the remaining thirteemtwentieths of the “ Wells ” land. The internal evidence afforded by this deed tends to confirm the construction that the instrument of April 18, 1882, was only a contract of sale, and not a deed of conveyance; that the deed of November 7, 1883, was in fulfilment thereof; and that the interests it conveys, to the extent that they are specified in the earlier instrument, are the same. The only difference between them, as respects the lands in controversy, is that the writing of April 18, 1882, only specifies a sale of one-half of seven-tenths of the “ Wells ” land, which is seven-twentieths thereof, while the deed of November 7, 1883, conveys thirteen-twentieths.
It appears from the record that Wells left five children, to whom the said land descended. Prior to April, 1882, Mills had bought from two of the children their interests, and from James Graham, who had become the owner of the other three interests, an undivided half thereof, thus making Mills the owner on April *41718, 1882, of an undivided seven-tenths, of which he sold one-half to W. D. Jones and Joseph B. Altemus by the writing of that date. Subsequently, and prior to November 7, 1883, Mills acquired from Graham his remaining interest in the “Wells” land, amounting to six-twentieths, which, added to the seven-twentieths specified in the writing of April 18, 1882, makes the thirteen-twentieths conveyed in the deed of November 7, 1883, and left him as owner of the remaining seven-twentieths of the “ Wells ” land, and an undivided half interest of the one hundred and fourteen acres, or “ Elkins ” tract.
The subsequent conveyances under which the appellant claims title to the lands in controversy also tend to confirm the construction that the instrument of April 18, 1882, was only intended by the pai'ties as an agreement of sale, and not. a deed of conveyance.
On December 27, 1883, only a few weeks after the deed of November 7, 1883, from Mills to Jones and Altemus, and while these transactions were fresh in their minds, Jones conveyed to Altemus, Benson, and McGeorge, through whom the appellant claims, his undivided half of the interest of Altemus and himself in the one hundred and fourteen acre tract and his undivided -half interest of thirteen-twentieths of the “ Wells ” land. It is significant that he refers alone for a description of the lands, in which interests are conveyed by him, to the deed of November 7, 1883, and makes no reference whatever to the instrument of April 18, 1882, which would have been equally necessary and appropriate, if it had been a conveyance of the interests specified therein, and not merely a contract of sale.
Altemus was .one of the grantees in this deed, and the half owner with Jones of the interests in lands thereby-conveyed; and if they had acquired from Mills any greater interest than that whereof Jones was purporting to convey an undivided half, he would certainly have required Jones to include his full one-half of the interests owned by them. -
*418And in the immediate deed to the appellant, of October 1, 1892, under which it claims the lands in controversy, and in which Joseph B. Altemus was one of the grantors, the interests conveyed are decribed as being “ twice the amount conveyed by the said William D. Jones and wife ” to Altemus, Benson, and McGeorge; “ that is to say, all the estate, right, title, and interest of the said Joseph B. Altemus and William D. Jones,” in and to said lands.
It thus satisfactorily appears to my mind that the appellant is the owner of only an undivided thirteenth-twentieths of the “ Wells ” land, and a moiety of the one hundred and fourteen acre, or “Elkins” tract, and that Mills, on July'25, 1885, was the owner of the other moiety of the “ Elkins ” tract, and the remaining seven-twentieths of the “Wells” land, when he conveyed the same by deed of that date to William D. Jones, who, by the deed of September 8, 1889, conveyed the same to the appellee.
I am of opinion, for the foregoing reasons, that there is no error in the decree of the Circuit Court, and the same must be affirmed.
The other judges concur in the opinion of Biely, J.
Affirmed.