On Rehearing.
• Appellant, on its application for rehearing, insists that, conceding the correctness of the legal principle recognized in the opinion, nevertheless a jury question was presented.
While it is the duty of the court to construe deeds and determine their legal effect, yet the authorities recognize the further rule that in some instances the interpretation may depend upon the sense in which the words are used, and updn facts aliunde, and so present a mixed question of law and fact, and that the determination of the matters of fact are properly submitted to the jury. IS Corpus Juris 272.
And in Humes v. Bernstein, 72 Ala. 546, our court observed: “This is done by a hypothetical charge, stating the result, if certain facts are found tó be proved. The jury passes on the parol testimony, and determines what facts are proved. The court must determine what influence such facts, if found to exist, must exert, in interpreting the writing. The court thus interprets the writing, aided by the surrounding facts which the jury find to be proven.”
It may be seriously questioned that the mere statement in her testimony by the plaintiff that she and her husband set up no claim as tenants in common, rightly interpreted, in the light of all of her testimony, would suffice for this purpose. But we find a determination of this question unnecessary, and it may thei'efore be left to one side. This for the reason that, upon more mature deliberation, we have reached the conclusion that the case of Prior v. Loeb, Í19 Ala. 450, 24 So. 714, is decisive of this case adversely to defendant’s contention. At the time of the execution of the conveyance there in question, the title to the realty was in neither husband nor wife. The above statute (then section 1514, Code 1896) was quoted and applied, and the decision was evidently rested upon the theory that said statute is to be properly construed as relieving the wife of the binding effect of any covenants of warranty in a deed executed by herself and husband, so far as the same purports to convey real estate in which, at the time, the wife has no title or interest, or to which she asserts no claim. As thus interpreted, the statute has been re-enacted without material change, and such construction must be accepted as a part thereof. As thus construed, this statute, under the undisputed facts, is here applicable, and, all other questions aside, fully sustains the ruling of the trial court.
The application is denied.
ANDERSON, 0. J., and BOULDIN and FOSTER, JJ., concur.