McLeod v. Tarrant

The opinion of the court was delivered by

Mr. Justice Pore.

There are only two questions raised by this appeal. First: Whether the habendum in a deed, whereby an estate in land is provided for a man and his wife and their heirs and assigns, can be so construed to enlarge the premises in such deed, wherein the husband alone is granted an estate in such land, as that the estate in such land is vested in both husband and wife. Second: If so, and the wife survive the husband, whether she becomes seized of such land as an estate in entirety. The Circuit Judge, by his decree, answered the first question in the negative, thus rendering it unnecessary, in his judgment, to answer the second question.

1 We are not satisfied with that conclusion for the following reasons: The technical meaning of the premises in a deed is that part of the deed that sets forth the number and names of the parties; recitals necessary to explain the transaction, the consideration; and the certainty of the grantor, grantee, and thing granted. 2 Bl. Com., 241. This is the object of the premises. In the case at bar, the premises provide an estate for life to the husband (Varn v. Varn, 32 S. C., 77), the reason being that no words of inheritance are coupled with the estate vested in the grantee thereby. However, in the case at bar, in the habendum of the deed, the grantor uses words of inheritance whereby the estate for life, set out in the premises, is enlarged to an estate in fee in the husband. Why is this allowed? Is it not because the intention of the grantor is thus made clear to vest an estate in fee rather than a life estate? Thus the cardinal principle governing the construction of deeds is made to appear, viz: that the intention of the grantor, if consistent with law, must govern. This principle is recognized and enforced by this court. Chancellor v. Windham, 1 Rich., 161; McCown v. King, 26 S. C., 233; Mellichamp v. Mellichamp, 28 S. C., 125; Fuller v. Missroon, 35 S. C., 314.

But, it may be said, granted that the estate in land of the grantee in the premises of a deed may be enlarged by the habendum, it does not follow that a person named for the first time in the habendum, and not so named in the premises, can be admitted to be a grantee under such deed. Why should this be so? If no name at all appears in the premises as the grantee, but such name first appears in the habendum, the courts effectuate the intention of the grantor by making the grantee named in the habendum the true grantee under the deed. 3 Wash. R. P., 319; Perry v. Bellinger, 44 Maine, 416. All these matters are governed by the ascertainment of the intention of the grantor. This court, in the case of Kibler v. Luther, 18 S. C., 606, held, in effect, that when the concluding parts of a warranty in a deed for land imposed a duty, or a condition, for the first time expressed in the whole deed, it wms incumbent upon the court to give effect to such stipulations by the grantor. Why? Because thereby the grantor evinced his intention for his conveyance to so operate. “The office of the habendum in a deed is properly to determine what estate or interest is granted by the deed.” 2 Blackstone, 241. Applying these well established and-just principles to the case at bar, and we fail to see why the intention of the grantor that the wife should be a grantee, along with the husband, of the estate in fee he had conveyed by his deed, should not be enforced. How else can the words of this deed in the habendum — “To have and to hold all and singular the said premises before mentioned unto the said A. B. McGilvary and Nancy McGilvary (late Nancy Holloway), their heirs and assigns forever. And I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said A. B. McGilvary and Nancy McGilvary (late Nancy Holloway), their heirs and assigns,” &c. — be construed.

[filed June 5, 1893].

2 The second question has been already decided by our courts. In a deed whereby lands are conveyed to husband and wife and their heirs and assigns forever, the survivor of such husband and wife is seized of such in entirety. Bomar v. Mullins, 4 Rich. Eq., 80; also, Georgia, &c., Railway Company v. Scott, by Judge McGowan, 38 S. C., 34. It follows, therefore, that the Circuit Judge, as before remarked, was in error in his decision of the first question, and was also in error in refusing to decide the second question in the affirmative.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the complaint be dismissed.