Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-08-12
SUPREME COURT DECISIONS

acres OF land, and is To be determined
chiefly by the effect to be given to an in
strument of writing which is quite infor
NAL, signed by Philip Smart and his wife
Abigail Smart, and purporting to-be exc
cuted by them to Samuel Caranay and hi.
wife Mary, the defendant.
This instrument is in these words
Counting the boundaries) viz: This in
denture, made this, the 2Sth of Decem
Der, in the year of our Lord 1861, be-
tween Philip Smart and his wife, Abigail
Smart and SamuelC. Caranay and his wife,
Mary Caranay, all of the county of
rutherford, and State of Tennessee, wit
nesseth that for, and in consideration of,
the love and affection we have for the
said Samuel c. Caranay and his wife, Mary
Caranay, and Sarah Ann Caranay, John
3. Caranay, Martha Caranay, Philip NJ.
Caranay and Nancy Caranay, our
grandchildren, have this day given
and bequeath to the said Samuel G. Car
anay and his wife, Mary Caranay, Ger
tain tract or parcel of land situated and
lying in the county of Rutherford and
District No. l, lying on the side of
Stones river, beginning at cedar, etc,
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more or less, to have and to hold said
land and premises for their benefit, all
the right, title and interest we have to
the same forever, which we warrant and
defend to them, their heirs and assigns.
And the said Samuel c. Caranay and
his wife, Mary Caranay, on their part,
doth Obligate themselves to support and
maintain the said Philip Smart and his
wife, Abigail Smart with kindness and
respect, as becomes old people of their
age, and will not debar them from any
right of privilege on said land and prem
Uses, so long as they both shall live, and
if the said Samuel c. Caranay, and his
wife, Mary Caransy, doth faithfully and
kindly comply with the above obligation,
to be in full force and virtue; otherwise
to be null and void, and of no force at
all
In testimony whereof, we have set our
hands and seals this, the day and date
above written.
PHILIP SMART, Seal.
ABIGAIL SMART, Seal.
Test:
ROBERT NJ SMITH,
ELIJAH CREEI
This instrument, it appears, was not
registered in the lifetime of Philip or his
wife Abigail, but it is alleged that it was
registered afterward. Samuel Caranay
and Philip Smart and his wife Abigail all
died in the year 1868, their deaths all oc-
curing within a few months of each
other. Philip Smart died in May, and
Samuel Caranay and Abigail Smart both
in the month of July.
Defendant, Mary Carauay, the widow
of Samuel, became the administrative of
her deceased husbands estate. She after
ward made application to the County
Court for dover in the seventy-six acres
of land referred to in this instrument of
writing; also as administrators, filed her
petition for sale of the balance of the land
for payment of the debts of her intes-
tate.
Samuel Caranay's first wife was the
daughter of Philip Smart. By this mar
rage she had children, who are the
grandchildren mentioned in the writing
and a portion Of the compliments in this
suit. This wife having died, Samuel
Caranay married the defendant Mary.
This bill is filed by these children of
Samuel Caranay by his first marriage, and
by the children of Philip Smart, praying
an injunction of the proceedings of the
defendant Mary in the County Court in
reference to this seventy-siX acres of land
and praying that this instrument be de-
clared a nullity, and chat the title to this
land be declared to be in compliments as
thedeirs at law of Philip Smart.
The first question to be disposed of is
whether it be a deed or a will. We think
this question is of easy solution. The in
strument plainly shows upon its face that
it was intended to 20 into effect in pre-
sent and not in future. One of the
stipulatiOns in the deed is that Caranay
and wife are to support and maintain
Smart and wife with kindness and respect
as becomes old people Of their age, and
will not debar them from any right of
privilege on said land, etc.
This language plainly signifies that the
instrument was to take effect in present..
If no effect was to be given to il till after
his death then there would have been no
necessity for a stipulation that he was to
be debarred of no privilege on the land.
1t is insisted that it cannot have effect as
a deed for the reason that there is no con-
s1deraton to support; that Caranay and
wife were not related TO Smart by con-
sanguinity and therefore it it not etfectual
even as q covenant to stand seized to the
use of CaraEay and wife,
1t is further insisted that as a deed of
bargain and sale in as much as Caranay
and wife did not sign the deed, the GOV
naEts of the deed do not bind them and
that there is, therefore, no mutuability,
and consequently no valuable cOnsideTa-
ton to support it.
The signature of Abigail Smart TO the
deed (she being a feme cOvert) does not
affect the instrument.
1t does not appear she had any separate
estate or other interest in the land. Oae OF
the stipulations in the deed is, as we have
seen, that Caranay and wife will support
and maintain the said Philip Smart and
his wife with kindness and respect, as be-
comes old persons of their age, and will
declare them, etc, and if the said Cara
nay and wife should faithfully and kindly
comply with the above obligation, then it
is to be in full force, otherwise to be of
no force at all.
1t is not cOntrOyerted that Caranay and
wife accepted the deed, and the estate
therein conveyed. They entered upon
the performance Of th9ir covenant set
forth in the iced, and the evidence re-
lates chiefly to the degree of fidelity
with which they performed it.
In Coke upon Lyttleton, ID Vol, pages
27l-2, the following case is stated: An
indenture of lease is executed between A.
and B. But on the face of the indenture
the devise is made to B., jointly with D.;
but D. does not sign the indenture, and
one of the covenants of the indenture is,
that d. and b. will pay TO A
twenty pounds, if certain conditions
mentioned in the indenture arc
not performed. A instituted suit against