Lewis v. Lewis

THE COURT.

The suit is to quiet title to the land described in the complaint. The judgment was for the defendants, and the plaintiffs appeal therefrom, and from an order denying their motion for a new trial.

The plaintiffs deraign title under a deed of date November 1, 1873, wherein their father, the deceased Henry Lewis, is party of the first part and they are parties of the second part. This deed purports to be in consideration of natural love and •affection and to grant to the parties of the second part the property in question. But the granting part of the deed and description of the land is followed by certain reservations, which, so far as material, are as follows:

“I, Henry Lewis, the above-named grantor, do hereby reserve to myself, and for my own benefit, the power, during my natural life, to reside upon, occupy, improve, and cultivate, the real property above granted, and to apply the profits derived therefrom to my own use. And I do hereby reserve to myself for my own benefit, the power, at any time during my natural life, to make and execute, according to my pleasure, such mortgage or mortgages upon said property, or any part thereof, as I may think necessary to secure the payment of any sum or sums of money, to any person whatever. And I do hereby reserve to myself, for my own benefit, the power, at any time during my natural life, to grant, bargain and sell all of said property, or any part thereof, to any person, for such price, and on such terms as to me shall seem advisable and to make, execute and deliver good and sufficient deeds for the same, and to apply the proceeds of such sales to my own use. This reserved power is to be construed as reserving to

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myself the power to sell said property, or any part thereof, at any time, although I may have previously (under this power) leased or mortgaged, or both leased and mortgaged the same,” etc.

The defendants claim under the will of the deceased, which devises to the defendant Rebecca Lewis a life estate in the lands in question, with remainder to certain of the other defendants and of the plaintiffs; and it is found that Henry Lewis, deceased, at the time of his death was the owner in fee simple of the land in question. This finding is based upon a deed of the deceased in his lifetime, of date October 2, 1879, to one Newell and a reconveyance from Newell of the same date to himself; both deeds purporting to be in consideration of the sum of $100, and both being recorded on the day of their execution; the former at 2 o’clock P. M., and the latter at five minutes past 2. The deed from Lewis to Newell appears from its recitals to have been made in pursuance of the power “to grant, bargain and sell” contained in the deed of the former to his children; and the question is, whether it was a due execution of this power.