Hall v. Brittain

HENSHAW, J.

This action was brought by plaintiffs, seeking the specific performance of a contract for the sale and purchase of five acres of their land, the defendant and appellant Brittain being the purchaser. No question arises as to the fairness of the contract itself, and defendant resisted the action solely upon the ground that plaintiffs could not perform their contract by conveying to him a good and perfect record title. Prom the decree awarding specific performance he appeals, presenting for consideration the single question of the nature and character of respondents’ title.

Herein it is made to appear that W. S. M. Wright, dying testate, made devise of a tract of land known as the Hudspeth tract, five acres of which tract is the land over the title to which this controversy has arisen. By his will he devised

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one undivided half of the Hudspeth tract to his wife and the remaining moiety he devised to his son Sampson and to his daughter Mahala Hall, “in equal shares for and during their natural lives respectively, with the remainder over in fee simple absolute to their children.” He further expressed his will, desire, and intent that neither Sampson nor Mahala should at any time “sell or encumber his or her said life estate in any of said lands by deed, mortgage, lien or any other kind or character of encumbrance, or by judgment or execution sale, and in the event either of them shall create or attempt to create upon his or her interest in any of said lands, any lien, encumbrance or estate therein in another, except for taxes or liabilities of a public character, directly or indirectly, then his or her estate in such lands shall at once cease and be ended, and such lands shall become at once absolutely the property in fee of the children of such one respectively, share and share alike.” The decree of distribution in the matter of this estate construed the will as devising a life estate in an undivided one-fourth of the property to Sampson and his children, born and unborn, and another undivided one-fourth to Mahala and her children, born and unborn. In each case the children living are named. The decree also embodied in precise words the provisions of the will, providing for a forfeiture of the life estate if either of his children should attempt to sell or encumber any of the land, declaring that in such event “such lands shall become at once absolutely the property in fee, share and share alike, of the children of such one.” After this decree had become final the widow brought her action in partition against her children and their children, asking for an allotment to her of her one-half of the tract. The answers of Sampson and Mahala set forth their ownership of a life estate each to an undivided one-fourth of the property and the ownership of their named children respectively to the remainders in fee. The interlocutory decree adjudged a life estate to Sampson and Mahala each to one-fourth of the property, and decreed ownership in the named children of each to the remainder in fee. Referees were appointed, partition was made, and thereafter the court entered its final decree, partitioning the lands as directed by the interlocutory decree and the report of the referees. Subsequently Mahala, by bargain and sale deed, reciting a valuable consideration, which deed was duly