LIVINGSTON, Chief Justice.
This is an appeal from a decree of the Circuit Court of Calhoun County, in Equity, in a suit brought by the heirs at law of H. F. Harrison, deceased, against Hazel Curlee Johnson, the niece of the deceased, to set aside a deed executed by Harrison during his lifetime to Mrs. Johnson, the appellant.
The complaint as last amended sought cancellation of the deed on four grounds: (1) mental incapacity of the grantor, (2) undue influence on the part of the grantee in the deed, (3) lack of delivery of the deed during the life of the grantor, and (4) forgery.
The lower court found that the deed was executed by the grantor named therein, that there was no undue influence exercised over him and that he was mentally capable of executing the deed, but that there had been no delivery in the lifetime of the grantor named in the deed and therefore it was ineffectual to pass title.
The deed sought to be cancelled was entered into on March 26, 1954, by and between H. F. Harrison, party of the first part, and Hazel Curlee Johnson, party of the second part, and was in words and figures as follows:
"The State of Alabama
Appellant, in assigning errors, presents two questions: (1) that the minor children of Hazel Curlee Johnson, Margarette and Stephenie Johnson, are not made parties to the suit, and that they as remaindermen of the suit property are indispensable parties; (2) that the evidence is sufficient to show effectual delivery of the deed during the lifetime of the grantor and that the court erred in its finding as a matter of law from the testimony in this cause that there was no delivery of the deed during the lifetime of H. F. Harrison (grantor).
The deed was found in a tin box which was still in the possession of the grantor at the time he took his life. After his death, the brother of Mrs. Johnson, Hoyt Curlee, got the box and opened it and the deed was taken from the box. Hoyt Curlee said in the presence of the grantee (Mrs. Curlee Johnson):
"Hazel, we have something in this box that concerns you."
Hazel looked surprised and her mother said that she was surprised.
Hoyt Curlee testified that some time before Mr. Harrison (grantor) died, he showed the deed here involved to him (Hoyt Curlee) and told him to take the deed, and that he (Hoyt Curlee) told the grantor that he had no place to keep it. Curlee testified that he told Mr. Harrison:
This transaction between the deceased grantor and Hoyt Curlee took place some two months before the grantor died.
The appellant has correctly stated the law as to who are indispensable parties, but it is not applicable to this case upon proper construction of the deed involved.
All conveyances of land are construed as fees unless expressly limited. Title 47, § 14, Code of 1940. In construction of deed, intent of parties will be sought in entire instrument. Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420; Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180; Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127, and cases therein cited.
Another rule of construction of deeds is that when subsequent words are of doubtful import, they cannot be construed as to contradict the preceding words which are certain. Petty v. Boothe, 19 Ala. 633; McCombs v. Stephenson, 154 Ala. 109, 44 So. 867; Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Hardee v. Hardee, supra.
Also, the granting clause in deed determines interest conveyed and when not obscure or ambiguous it prevails over introductory statements or recitals. Henry v. White, 257 Ala. 549, 60 So.2d 149; Wright v. Smith, 257 Ala. 665, 60 So.2d 688; Green v. Jones, 257 Ala. 683, 60 So.2d 857; Hardee v. Hardee, supra.
Looking at the deed as a whole, the first sentence shows a grant to one grantee. True, there were no words of inheritance following, therefore, we look to the next words following description. This sentence contains an unintelligible and a non-sensical phrase "her daughters will become owner of same Daughters Margarette Johnson and Stephenie Johnson."
With such phrasing, the sentence is not clear or certain, it is obscure and of doubtful import. It requires editing, punctuating, and adding to the sentence.
The next part of the deed clearly states "her heirs and assigns, in fee simple." The next sentence states "she is lawfully seized in fee of the said premises, that she had a good right to sell and convey the same."
The deed imports a fee simple title in all its clauses but one, which is of doubtful import. These facts, plus the presumption that every estate in lands is to be taken as a fee unless clear and expressed terms are shown to the contrary, leads to the conclusion that the grantee, Hazel Curlee Johnson, received a fee simple title; therefore, there is no interest conveyed to her daughters, Margarette and Stephenie Johnson, whom appellant claims are indispensable parties and have an interest in suit. Consequently, there was no failure on the part of complainants to join indispensable parties.
The second argument for reversal advanced by appellant is that the trial court in his decree held that the testimony, as a matter of law, was insufficient to show a delivery of the deed during the lifetime of the grantor.
Whether the judge in his decree held that there was no delivery as a matter of law or as a matter of fact is not clear, and the decree is ambiguous in this respect. The decree, in pertinent part, reads as follows:
The portion of the decree which appellant claims states there was no delivery as a matter of law is as follows:
This phrase standing alone would tend to import that the court decreed no delivery as a matter of law, but looking at the record and decree as a whole, we think the court decreed no delivery as a matter of fact. The portion of the decree that appellant relies on comes under the heading of "Finding of facts." Also, the court stated "the court is not convinced," which imports that the facts or testimony given were not enough in his mind, sitting as trier of facts, to convince him that grantor intended to divest himself of title, the question of delivery being one of fact and based on the intention of the grantor. Alford v. Henderson, 237 Ala. 27, 185 So. 368; Dawson v. J. A. Lindsey & Co., 223 Ala. 169, 134 So. 662; Hinson v. Byrd, 259 Ala. 459, 66 So.2d 736.
Our construction leads us to the conclusion that the trial court intended to say that even if Hoyt Curlee's testimony is true, he is not convinced that this manifested an intent on grantor's part to divest himself of the title to said property, this being a question of fact and not of law.
Such finding of the Chancellor of the lower court, in our opinion, not being plainly erroneous or palpably wrong, we will not disturb such a finding. Trans-America Ins. Co. v. Wilson, 262 Ala. 532, 80 So.2d 253; Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558; Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 111 So.2d 906; Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760.
Having considered the entire record as it bears on the issues, it is the opinion of this court that the decree of the Court of Equity granting relief to complainants should be affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur.