Massey v. Whittaker , 126 Miss. 99 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

The appellants exhibited their hill in the court below against the appellee, alleging that they and the appellee are tenants in common of certain land, and praying for a partition thereof. The appellee by her answer denied that the appellants have any interest in the land. The cause was heard on bill, answer, and proof, resulting-in a decree dismissing the appellants’ bill.

The facts are that H. Hearn, who then owned the land, executed a deed thereto through which all of the parties hereto claim, the material portions of which are as follows :

“This indenture, made the 21st day of May, A. D. 1913, between H. Hearn, of the first part, and his Avife, M. A. Hearn, of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of three hundred dollars to' him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey to the party of the second part, her heirs and assigns, that certain tract or parcel of land situated in the county of Tishomingo and state of Mississippi, known and described as folloAvs: (Description omitted.) And it is further agreed that the said M. A. Hearn is to oavu the above land only during her natural life, the title then to go and be vested in my three heirs as follows: W. B. Hearn, Sarah Catherine Hearn Robinson, and Mattie Green Hearn, first two children, last one granddaughter, together with appurtenances to said premises belonging, and all estate, title, and interest, both at law and in equity, of the party of the first part in the same. To have and to hold the said granted premises, with the appurtenances, unto the parties of the second part, their heirs and assigns, forever, in fee simple.”

W. B. Hearn afterward conveyed his interest in the land to Mrs. M. A. Hearn, and the appellants acquired by purchase the interest of Sarah Catherine Hearn Robinson and Mattie Green Hearn. M. A. Hearn died leaving a will by which she devised her “undivided interest” in the land to her daughter, Mattie Whittaker, the appellee here- . * m.

The contention of the appellee is that the grant to Mrs. M. A. Hearn, her heirs and assigns, contained in the first clause of the deed, is of an estate in fee simple, which cannot be cut down to a life estate by the later repugnant clause in the deed “that the said M. A. Hearn is to own the above land only during her natural life, the title then to go and be vested in my three heirs as follows,” etc. .

The rule here sought to be invoked is that, where there is a clear and manifest repugnance between two clauses of a deed, the first must prevail; but this rule, like all other rules of construction, cannot be invoked where, from an examination of the whole instrument, the intention of the parties thereto is plain (Robinson v. Payne, 58 Miss. 690; Hart v. Gardner, 74 Miss. 153, 20 So. 877), and from this deed, taken as a whole, it is manifest that the grantor intended to convey to his wife a life estate only, with remainder to W. B. Hearn, Sarah Catherine Hearn Robinson, and Mattie Green Hearn.

Reversed and remand&fi.