Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-16
MOSES NELSON.
JOHN w. NELSON.
r. A NEIsoN

set our hands and seals, the 18th of
July, 1869.
GSigned MosEs NELSON.
JOHN w. NELSON.
b. A. NELSON.
The land in controversy is the fifty acre
tract mentioned as the portion conveyed
to BENZ. A. Nelson as above, and was
part of q grant by the State to the heirs
of Daniel Vaughan as shown in the proof.
The only question. necessary to be consid-
cred is the effect of the foregoing instru-
ment upon the title, and whether Benz. A.
Nelson was invested with such legal
estate in the land as was subject TO execu-
ton and sale, SO that the purchaser may
maintain ejectment, under Sheriff's
deed founded on such sale. The land lies
in Bedford county, and in the Circuit
Court of that county the plaintiff recov-
cred judgment against the defendant, B.
A. Nelson, on the I'd of August, 1859.
An execution was issued and levied upon
the land on the oath of May, 1860, and
the same was sold as the property of B.
A. Nelson and purchased by the plaintiffs,
who, on the 30th of July, 1866, obtained
a Sheriff's deed, and on that day insti
tuted this action af ejectment. The YER
dict and judgment below we're for the de-
PENDANTS, from which the plaintiffs have
appealed in error.
1t is unnecessary to discuss the effect
of the last or closing words of the instru-
ment in question, or whether or not the
present vested legal estate in remainder
thereby created, is or is not leviable in
tefest, out of which the plaintiffs might
have realized their judgment to the extent
of the value of the remainder. 1t is
well settled that Teversions and vested re
mainders in real estate are subject to exc
cution sale. Kelly VS.. Morgan, Yerg.,
437. But the plaintiffs have chosen to
treat the instrument as a conveyance of
the legal estate IN present., with a right
of immediate possession, and thus re.
garding it, they have caused their execu-
ton to be levied on the land as if held in
fee simple absolute by their debtor, and
the Sheriff's deed founded upon such sale
is their chief imminent of title. 1t is a
doctrine of the law that the plaintiff in
eiectment must be clothed with the per-
feet legal title in order to sustain his ac-
ton, and that he must rel upon the
strength of his own and not the weakness
of his adversary's tile. Q johnson R.,
60; l Swan, 146. Is the Sheriff's
deed in such a case as this such
imminent of titlel We think
not. The doctrine that words
appropriate and purporting 10 convey the
absolute estate, used in deed are deci
sive of its construction, and are to pre-.
vail over the manifest intent of the in
strument to the contrary, cannot be main
tanned. The true rule is thus stated by
this court: Contracts of every kind
may be subject to conditions by which an
estate or interest may commence or be en-
larged or defeated. No technical words
are necessary to create the condition or
declare its nature. Whether the contract
be upon condition precedent or subse-
quent, are questions TO be resolved by the
intention of the parties, or TO be collected
from a careful consideration of the entire
instrument. Carnes VS. Apperson, 2
Sneed, 562; ct vid. 9 Humphreys, 541;
/ Swan, 1874.
The levy and sale and Sheriff's deed is
of the whole estate, and the validity of
the proceeding, as an investure of title,
can only be ascertained by q construction
of the instrument. The intention of the
parties is too evident to admit a question.
The instrument is not technically deed
of conveyance, but a deed indented; or
obligation in which there are more parties
than are bound by reciprocal obligations
to each other. l BOW. l. D. 96S. The
party of the first part, Moses Nelson,
was the father, and the two Others the
SONS. The intention to retain the legal
title for the benefit of himsslf and wife
and his old slave, Chloe, is predominant
and pervading, and may be observed in
almost every alternate line of the instru-
ment. 1t is said that one OF the parties,
in whom the old man had reposed his
hope of maintenance for the declining
years of the three benefciaries, has left
the country. The other had rot perform
ed the conditions of the trust upon
which the legal title was TO be reliuquish-
ed to him. 1t follows, therefore, that
the defendant did not have such an estate
in the land as was subject to execution
in the manner as actually levied, nor has
the plaintiff derived, under that proceed
ing, such title as will enable him to
maintsin this action.
Judgment affirmed. SyEED, Judge.