Hart v. Gardner ( 1896 )

Whitfield, J.,

delivered the opinion of the court.

The only question presented by this record is whether the grantor in the deed reserved a life estate. It is argued that because the use of the words ‘ ‘ convey and warrant ’ ’ has, under § 2479, code 1892, the effect, where the form of deed provided by that section is used, “to transfer all the right, title, claim, and possession of the person making it as can be done by any sort of conveyance,” the use of these words in a deed containing other clauses clearly expressing the actual intent of the grantor is to have the same effect, notwithstanding such clearly expressed actual intent. The argument is that the law implies from the use of these words a grant of all the grantor’s estate; and hence, these words occurring in the granting clause, the legal implication from their use is conclusive that the grantor intended to grant all the estate he had, and if, in the habendum, a different actual intent is expressed, the habendumtis in conflict with the granting clause, and must be disregarded. The fault in this reasoning is that the rule has no application when the estate intended to be granted is not actually set forth in the granting clause, in words chosen by the grantor for that purpose, but is worked out by legal implication of the intent to convey a particular estate from the use of certain statutory words, and where, in addition, the estate intended to be granted is clearly shown elsewhere in the deed. The rule which required the habendum to yield to the granting clause when repugnant intents are expressed in the two as to the estate to be conveyed, is applicable only where these intents are both the actual intents of the grantor, and not intents arising by implication of law from the use of certain words to which the statute has affixed a certain meaning. The distinction is between the actual intent of the grantor, expressed in terms of his own, selected to declare that intent, and an intent merely implied by law. And this distinction is abundantly sustained by authority.

In Elph. Interp. Deeds, p. 216, rule 65, it is said: “If no estate be mentioned in the premises, the grantee will take nothing under that part of the deed except by implication and presumption of law. But, if an habendum follow, the intention of the parties as to the estate to be conveyed will be found in the habendum, and consequently no implication or presumption of law can be made. ’ ’

In Montgomery v. Sturdivant, 41 Cal., 290, where the statute provided, as does ours (code 1892, § 2435), that a fee simple should pass without the use of words of inheritance unless a less estate was limited, and the granting clause conveyed a certain tract of land to “Z. Montgomery and Ellen, his wife,’’ habendum to them for their natural lives, remainder to the heirs of their bodies, and the rule was invoked to show a fee in Montgomery and his wife, the court said (page 296): “If the habendum were entirely omitted, the deed in question would undoubtedly have conveyed an estate in fee simple, and it is therefore^contended that the language of the habendum which attempts to limit the estate granted to a life estate is repugnant. Independently of the statute, the common law rule was that a deed like this, without the habendum, would convey a life estate only. The estate, though different, was just as definite as that under the rule of the statute. If the argument of counsel were correct, the result would have been that the grant could not have been enlarged by the habendum. Yet we all know that, where the formal parts of a deed are all used, this was the customary mode of conveying, and is still often followed. The rule of common law was only intended to apply to conveyances in which the extent of ownership of the grantee in the thing granted was not defined in the conveyance. The statute rule was merely intended to take the place of the common law rule. Neither was intended to override the expressed intention of the-parties. The office of the habendum is to limit and define the estate which the grantee is to have in the property granted. It is not an essential part of a deed. No estate is limited in the granting part of the deed, but this is done in the habendum. The legislature did not intend to prohibit this form of conveyance, but merely to supply a rule of construction when the parties fail to define the estate conveyed. ’ ’

In Stukeley v. Butler, Hob., 305, it is said: “Like law is of the use of an habendum, that if, by your premises, you have given no certain nor express estate than that otherwise the law would give, you may alter and abridge — nay, you may utterly frustrate — it by the habendum.” To the same effect, see 3 Washb. Real Prop., p. 466 et seq., especially section 61; Martind. Conv., sec. 111; 1 Devl. Deeds, secs. 216, 213, 214. And see, specially, the very striking case of Henderson v. Mack, 82 Ky., 379, where the court say: “The proper end of all rules of construction is to effect the intention of the parties to the instrument; and the intention of the grantor in a deed is to govern, when it can be ascertained, equally as in the case of other instruments. In arriving at it the entire paper must be considered. Blackstone says that the construction ‘ must be made upon the entire deed, and not entirely upon disjointed parts of it. ’ ” If clauses are repugnant to each other, they must be reconciled if possible; and the intent, and not the words, is the principal thing to be regarded. ‘ ‘ The technical rules of construction are not to be resorted to when the meaning of the party is plain and obvious. ’ ’ As was well said in Robinson v. Payne, 58 Miss., 692, “the intention must prevail, whether it is discovered in the first or the last clause of the instrument.” See, also, note to Dodge v. Railroad Co. (Mass.), 13 Law. Rep. Ann., 318, 319. This deed does not stop with the statutory form. The words “ convey and warrant ’ ’ are not left to have the meaning and effect which they would have had had the statutory form alone been used, namely, to convey all the estate, right, title and possession of the grantor. The grantor does clearly express, in terms of her own choosing, her actual intent, to wit, that possession is not to be delivered till her death. She reserved a life estate. In such case, the words “convey and warrant,” which pass all the grantor’s estate by virtue of legal implication alone, where the statutory form of conveyance is used, must yield to the actual intent, thus elsewhere in the deed plainly declared, just as the words “grant, bargain and sell ” operate as an express covenant that the grantor was seized, etc. (see § 2440, code 1892), only where not ‘ ‘ limited by express words contained in the conveyance. ’ ’ The grantor does not leave it to legal implication; she clearly defines and declares the estate she means Williams to have. Williams is to pay all taxes, state, county and city, during the term of the life estate. He is not to furnish lodging, because she retains possession till death. He is to clothe and feed her, and at her death, in return for these considerations, he is to have the property. There really is no habendum clause in this deed, unless we regard the explanatory clause, “it being hereby understood that possession of said property is to be given at my death, ’ ’ as being such a clause. Plainly, on this deed, Lucy Gardner reserved to herself a life estate for her life, and this passed under the execution sale to appellant. Code 1892,. § 3498. It follows that

The judgment must he reversed, and a judgment entered here for appellant.