Mason v. Jackson

Butler, J. On November 15, 1919, J. T. Mason and Lillian Hearon Mason, his wife, executed and delivered to W. D. Jackson, father of the appellees, a warranty deed conveying, by proper description, a certain forty acres of land situated'in Nevada county, Arkansas. The granting clause of the deed is as follows: “* * * Do hereby grant, bargain, sell and convey unto the said W. D. Jackson and unto his heirs and assigns forever the following lands lying in Nevada county, Arkansas, to-wit: (here follows description of the lands.)” The habendum clause of said deed is as follows: “To have and to hold the same unto the said W. D. Jackson and unto his heirs and assigns forever with all appurtenances thereunto belonging, except one-half interest in all oil, gas and mineral rights.” J. T. Mason, the grantor in the aforesaid deed, died intestate leaving surviving his widow, the appellant, and certain heirs. The latter executed a quitclaim deed to the appellant on July 31, 1936, conveying to her one-half the mineral interests reserved in the aforesaid deed. On the same day appellant executed an oil and gas lease to the Benedum-Trees Oil Company, whereupon suit was instituted by the appellees against the appellant seeking to cancel the quitclaim deed and the oil and gas lease as clouds upon their title. This suit was predicated upon the theory that the reservation in the habendum clause of the warranty deed is void. Issue was joined by answer, and upon a hearing of the cause the chancellor found that the reservation in the deed was void and entered a decree granting the relief prayed. In this we think the chancellor was correct. In the lower court, and on appeal, appellant contends that appellees’ suit is barred by limitation and laches and, further, that the reservation in the deed is valid. We think a decision of the last question is decisive of the first. The reservation being void, as the chancellor found, no duty rested upon the appellees to take notice of the same until their title became clouded by conveyances of the estate attempted to be reserved. From earliest times the rule has obtained that where two clauses in a deed are totally repugnant to each other, the first shall be received and the latter rejected. Cooley’s Blackstone, 4th Ed., vol. 1, page 737; Doe v. Porter, 3 Ark. 18, 36 Am. Dec. 448; Tubbs v. Gatewood, 26 Ark. 128. Applying this rule to specific clauses, this court, in Whetstone v. Hunt, 78 Ark. 230, 93 S. W. 979, 8 Ann. Cas. 443, quoted with approval from Wash-bum on Beal Property, as follows: “If there is a clear' repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former.” The appellant concedes that the earlier cases of this court approve the rule above stated, but contends that the “modem” rule should prevail over all technical mies of constmction so as to effectuate the intention of the parties. In the earlier cases this rule was recognized. In Doe v. Porter, supra, the court laid down certain rules for the construction of deeds, 'which, it said, were so ancient and of such universal application as to become “maxims in the science of the law.” Among the rules stated, are the following: “All deeds shall be construed favorably, and as near the intention of the parties as possible, consistent with the rules of law. * * The construction ought to be put on the entire deed, and every part of it. For the whole deed ought to stand together, if practical, and every sentence and word of it be made to operate and take effect. ’ ’ In the case of Carl Lee v. Ellsberry, 82 Ark. 209, 101 S. W. 407, 12 L. R. A. (N. S.) 956, 118 Am. St. Rep. 60, Mr. Justice Battle, in an opinion where many of the leading authorities are reviewed and cited, among them the case of Whetstone v. Hunt, supra, announced as a rule which has never been disregarded or even seriously questioned that a grantor cannot destroy his own grant however much he may modify it or load it with conditions, and, where an estate is once granted in a deed, no subsequent clause, even in the same deed, can operate to nullify such conveyance. The granting clause of the deed then before the court conveyed to the grantee, “and unto her heirs and assigns forever,” certain lands, and the habendum clause recited, “to have and to hold the same unto the said G-eorgena Ellsberry and unto her heirs and assigns forever, with all appurtenances thereunto belonging; provided, however, that should the said Georgena Ellsberry die without issue, and before her husband, William M. Ellsberry, then the property herein conveyed is to revert to the said William M. Ellsberry.” Applying the rule above set forth, the court said: “The granting clause of the deed conveys the lands described to the grantee in fee simple. The habendum defines the estate the grantee is to take to be .the fee simple, with a proviso limiting the estate in certain contingencies to a life estate. The proviso or condition is repugnant to the granting clause. Which prevails.” In the case at bar, except for the name of the grantee and the attempted limitation on the grant,- the granting and habendum clauses are identical with those of the deed under consideration in the Ellsberry case: “Do hereby grant, bargain, sell and convey unto the said .and unto his heirs and assigns forever, * * *. To have and to hold the same unto the said .and unto his heirs and assigns forever, with all appurtenances thereunto belonging.” Then follows the exception. In the instant case, as in the Ellsberry case, the granting clause conveys the lands described to the grantee in fee simple; the habendum defines the estate the grantee is to take in fee simple. The exception in the habendum clause attempts to limit the estate conveyed and is, therefore, repugnant to the granting clause which must prevail. In Levy v. McDonnell, 92 Ark. 324, 122 S. W. 1002, 135 Am. St. Rep. 183, the deed under consideration was one which, by its granting clause, conveyed the title in fee simple for a consideration payable in installments in the future. There was a recital following which provided that if the deferred payments were made when due, the instrument would become absolute, but if not, the grantee would be deemed a tenant in possession and liable for a certain sum as rent. The court held that the proviso was repugnant to the granting clause and void and cited the case of Carl Lee v. Ellsberry, supra. In the case of Cole v. Collie, 131 Ark. 103, 198 S. W. 710, the reservation in the habendum clause of the deed under consideration was held 'by the lower court to be irreconcilably repugnant to the granting clause. The granting clause, after naming the grantor, is as follows: “Do hereby grant, bargain, sell and convey unto the said James J. Lewis and to his heirs and assigns forever the following lands * * #. To have and to hold the same unto the said James J. Lewis and unto his heirs and assigns forever, with all appurtenances thereto belonging # * *, and we accept the manganese and lithograph claim.” In its opinion, .the court noticed the case of Carl Lee v. Ellsberry, supra, and that in subsequent cases distinctions were pointed out as to deeds which do not contain in the granting clause express words of inheritance, namely, Fletcher v. Lyons, 93 Ark. 5, 123 S. W. 801; McDill v. Meyer, 94 Ark. 615, 128 S. W. 364, but affirmed the decision of the lower court for the reason that “The present case falls squarely within the rule announced in Carl Lee v. Ellsberry.” Appellant complains of the harshness of the rule which, she contends, defeats the manifest intention of the grantor. She also contends that our “early” cases should not be controlling*, but that the “modern” rule should prevail so as to defeat technical rules of construction and to effectuate the intention of the grantor. This court has already had before it such a contention on a number of occasions and has always endeavored to construe the separate clauses of the deed under consideration so as to reconcile them if possible. However, in Stokes v. State, 121 Ark. 95, 180 S. W. 492, Ann. Cas. 1917D, 657, this court said: “And while it can not be doubted that the rule according primary significance to the granting clause still obtains, being sometimes treated as a rule of property, and if two conflicting intentions are expressed, there is no alternative but to construe the deed by the technical rules, even though they may be denominated arbitrary, nevertheless it is only when the clauses are irreconcilably repugnant that such a disposition of the question is required to be made. ’ ’ That this court has endeavored to construe deeds, if possible, to carry out the intention of the grantor is manifest as seen by the case of Fletcher v. Lyon, supra, where, when the granting clause as a whole was considered, it was adjudged that it did not convey the title in fee simple so as to make inoperative a subsequent clause limiting the conveyance and terminating it upon the happening of a certain event. In McDill v. Meyer, supra, there was held to be no repugnancy between the habendum and granting clauses, the granting clause containing no words of inheritance and the habendum providing that if the grantee died without children the title should revert to the grantor, but otherwise it should go to the grantee’s children. Also, in Bodcaw Lumber Company v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578, where the court denied the contention that the reservation clause in the deed was void as being in conflict with the grant. The court set out the granting clause and said, in support of its conclusion: “It will be ■ observed, however, that the clause in question is a part of the granting clause of the deed, and must, therefore, be read in connection with the grant as a limitation thereon, rather than as being in conflict with it. This is the rule where an exception or reservation is found in the granting clause of a deed. It is otherwise where the clause attempting to limit the grant’ is contained in the habendum or any subsequent clause of the deed.” Also, in the case of Citizens Investment Co. v. Armer, 179 Ark. 376, 16 S. W. (2d) 15, the court recognized the rule announced in previous cases that where there is repugnancy between the granting and habendum clauses, the former will control the latter, but, applying the further rule that it is the court’s duty to give all parts of a deed, if possible, such construction as to reconcile conflicting clauses so that they may stand together to effectuate the intention of the parties, held that there was no repugnancy between the granting and habendum clauses for the reason that the limitation on the grant was- contained in the granting clause itself. Fender v. Rogers, 185 Ark. 191, 46 S. W. (2d) 804, recognizes the rule announced in Carl Lee'v. Ellsberry, supra, citing that case with approval. It was there held, however, that there was no repugnancy between the granting’ and habendum clauses in the deed under consideration for the reason (quoting headnotes Nos. 4 and 5) that “where the granting clause in a deed does not define the estate conveyed, and the habendum clause, if it defines such estate, is determinative”; and “where the granting clause did not define the estate conveyed, and the habendum provided that the grantee should ‘have and hold the property unto herself and unto her heirs and legal assigns forever,’ the grantee received a fee simple.” In the recent case of Gravette v. Veach, 186 Ark. 544, 54 S. W. (2d) 704, the court found from the nature of the transaction that the grantee held the naked legal title for the use of the public and that the provision that such use be administered through a certain agency was not such a repugnancy to the granting clause as to render the latter void, but cites with approval the case of Carl Lee v. Ellsberry, supra. We have endeavored to examine all our cases dealing with the subject under consideration and have found none to impair or alter the rule first announced as applied in the cases of Carl Lee v. Ellsberry; Levy v. McDonnell and Cole v. Collie, supra. The terms of the deed in the case at bar are identical with those of the deeds under consideration in the cases, supra. It follows that the decree of the trial court is correct, and it is, therefore, affirmed. . Smith and McHaney, JJ., dissent.