Welch v. Finley

The conclusion reached in the majority opinion seems to me to be in violation of the intention of the grantors in the deed under consideration. This deed, in reality, is simply two deeds in one. Had it been so in fact, no suggestion of the creation of an estate by the entirety would be tenable for a moment. No intimation of the existence of the relation of husband and wife between the grantees is contained in the deed. The consideration is plainly stated as the "regard and affection we have for ourdaughter Fannie" and "eight hundred dollars" from "WilliamFinley." There is evidence that the fifty acres was worth about that sum. The grantors are at pains to say that "fifty acres is the land sold to William Finley," and "two hundred acres wegive to Fannie." This deed was the product of an unskilled hand. The writer obviously had about such knowledge as may be derived from an occasional reading of a printed form, and it is hardly to be inferred that even a black form was before him when he wrote this inartificial conveyance. Such a writer is apt to use such technical terms as he may recall at the moment, in order to give an air of legal knowledge to the document, but he usually has little realization of the significance of the words he employs. To him they are mere matters of form. When he intends, however, to express the controlling thought he has in mind, be naturally drops into the vernacular of the home and the fireside. Hence the blunt declaration of a sale to William and a gift to Fannie. Had an estate by the entirety been meant, no *Page 697 draftsmen, skilled or unskilled, would have been apt wholly to fail to give any clue to that intention. If skilled in the conveyancer's art, he might have contented himself with a recital that the grantees were husband and wife; if unskilled, his meaning would probably have been set forth with the same bluntness shown when he distinguished between a gift and a sale. Even the order in which the words "convey and sell to Fannie and William" are used is significant. Fannie is named first. To her the grantors "convey." William is then named. and to him the grantors "sell." Here was no sale to the daughter nor any gift to him whose relationship to the grantors in any degree, by blood or marriage, is recognized nowhere in the deed. The natural order of use of these words is "sell and convey." That is the usual sequence of events. The inverted form here used, "convey and sell," is alive with meaning when the order in which the grantees are named is considered. Furthermore, a gift to the daughter alone had no tendency to divert the title from the descendants of the grantors. A conveyance to the husband and wife as such (as this conveyance is held to be in the majority opinion) makes possible what has actually happened, namely, the vesting of the title in strangers to the grantor's blood. Nothing in this deed seems to me to foreshadow such an intent. Blair and Goode,JJ., concur.