Tyer v. Lilly

Calhoon, J.,

delivered the opinion of the court.

The whole contention for appellees is based on the force and effect of the solitary word £ ‘ his ” in a deed. This instrument, with the words of it pertinent to the question italicized by us, is as follows:

1 £Brantley Bolen to C. J. Bolen and Children :

£ £ This indenture made on the third day of February A.D. one thousand eight hundred and eighty two, and between Brantley Bolen, of Pontotoc county, party of the first part, and C. J. Bolen and children, parties of the second part, witnesseth: That the said party of the first part in consideration of the sum of Five hundred dollars to him paid by .the said party of the second part, the receipt of which is hereby acknowledged do by these presents, grant bargain, and sell, convey and convey and confirm unto the pw'ty of the second part, his heirs and assigns, the following described lots, tracts or' parcels of land, lying and being situated in the county of Pontotoc, State of Mississippi, known as described as follows: West half of the North East quarter of section five, Township nine, Range four E, to have and to hold the premises aforesaid with all the rights title privileges appurtenances and immunities thereof belonging, or in any wise appertaining both at law and equity, unto the said party of the second part and unto theirs heirs, executors and administrators and the said party of the first part for his heirs, executors and administrators do hereby covenant and agree with the said party of the second part, theirs heirs and assigns and the said party of the first part will warrant and defend the title to the said premises unto the said party of the second part and unto theirs heirs and assigns forever, against the lawful claims and demands of all persons whomsoever except on account of taxes after the 1st of January 1882. In witness whereof the said party of the first part hath hereunto set his hand and seal the day and year first above written. [Signed] B. Bolen. ’ ’

When this deed was executed the grantee, C. J. Bolen, was the father of one child, Beulah, the appellant here, who was a minor then, and still is a minor, and now the wife of R. L. Tyer. More than eleven years after its execution, and on December 23, 1893, C. J. Bolen alone conveyed the land in controversy, with general warranty, to E. Gr. Lilly & Son, the appellees. In 1901 Mrs. Tyer, by her husband, as next friend, filed her bill in equity against appellees, claiming an undivided one-half interest in the land as tenant in common under the deed to “ C. J. Bolen and- children, ’ ’ and praying for an accounting for rents and profits, and for partition. To this billappellees demurred on the ground that the bill showed on its face that C. J. Bolen took the entire title to the land under the deed to ‘£ C. J. Bolen and children. ’ ’ This demurrer was overruled, and answer filed, and testimony taken to throw light on the intent and purpose of Brantley Bolen, the grantor, on which the court below dismissed Mrs. Tyer’s bill “on bill, answer, exhibits, and proofs, ’ ’ and Mrs. Tyer appeals.

The briefs of counsel are quite able, and say all that may be said on either side, and have greatly aided the court in its investigation of the question involved in this litigation.

• The intent of the grantor is to be ascertained from an examination of the entire instrument. This document was manifestly prepared by merely filling in the blank spaces in a printed form of a deed. The filling in is characterized by the appearance of haste and carelessness and inattention. It makes the grantor say that, “he,” not “I,” “do grant,” etc., and “do agree,” etc.; and the words “theirs heirs” are three times used in the writing. The question is, must the possessive pronoun, “his,” be compulsorily referred to C. J. Bolen, or should it properly be referred, according to the actual intent, gathered from the whole paper, to the “parties of the second part,” as a class. It is not shown on the face of it whether the grantees are male or female, — whether it is to father or mother and son or daughter. If Beulah, the daughter, had been a son, and C. J. Bolen the mother, would “ his ” be wholly referred to the son ? If both grantees were males, to which one would ‘‘ his ” be referred ? If both were females, would ‘£ his ” render the whole conveyance nugatory ? These questions would all be promptly answered in the negative, and they illustrate the importance of a common sense view of the whole instrument, to see what the purpose was. In its collocation with the immediate context, the word “ his,” if it is referred alone to C. J. Bolen, seems absolutely nonsensical and preposterous. The ‘c indenture ’ ’ is recited to be 4 ‘ between Brantley Bolen, party of the first part, and C. J. Bolen and children, parties of the second part.” It then recites, “in consideration of |500 paid the said party of the second part,” and then proceeds to say that the grantor “do grant,” etc., “to the party of the second part his heirs and assigns.” But if we look for light on the meaning to the luibendum and the covenanting clauses, it becomes manifest that the word “his” referred to both the grantees. The habendmm is ‘ ‘ unto the said party of the second part, and unto theirs heirs and assigns, ’ ’ that the grantor will warrant, etc., ‘: unto the said party of the second part and .unto theirs heirs, ’ ’ etc. Upon the whole instrument it is plain that “his” is absurd, foolish, and unmeaning, unless applied to the parties of the second part; and we, without hesitation, so apply it. ■ This view harmonizes the whole instrument, and takes it out from under the operation of the wholesome rule that, where the granting clause is plain, it governs, though the habendMm clause be in conflict. Here the granting clause becomes clear only by a survey of the whole instrument.

We are content with the authorities cited in the briefs of counsel for support of this opinion.

Reversed and remanded for accounting.