Saunders v. . Hanes

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 355 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 356 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 357 The question of principle concern is the duration of the lease from North and wife to Thomas Thornton. The omission of words of inheritance, in the habendum clause, imports an estate for life only, as the law existed when the lease was executed in 1804. This is the clause in which the duration of the estate ought to have been stated according to the usual rules and forms of conveyancing. The word "heirs" which would constitute a perpetual term is not there, and this clause standing by itself, grants an estate for the life of the grantee only, and does not extend to his heirs. *Page 359 We are not, however, confined to a consideration of that clause, in determining the true construction in this respect. Every part of the instrument may be resorted to for the purpose of ascertaining its true meaning and the intention of the parties. "In a deed, if there be two clauses so totally repugnant to each other that they cannot stand together, the first shall be received and the latter rejected." (Shep. Touch. 88, Preston's ed.) The deed is to be construed most strongly against the grantors. The words used are their words, and if equivocal, that shall not benefit the parties using them. (Hathaway v. Power, 6 Hill, 453, 457.) Referring to the deed, in the granting part, and in describing the premises granted, are the following words: "And also the privilege and right of taking, using and enjoying, so much of the land adjoining the said mill seat as may be absolutely necessary to, and for the accommodation of the said grist and saw mill, restricting and binding the said party of the second part (the lessee, Thornton), his heirs and assigns, to the land contained within one chain in breadth, from the bank of said creek or river, the same having been heretofore reserved by the Hon. James Duane, aforesaid." The inquiry arises, why restrict and bind the heirs if they took no estate? If the lease granted an inheritable estate, those words were appropriate, and had a direct meaning and force. If not, they are without any significance. We are not to assume that they are used inadvertently or without meaning. The word "heirs," as here used, indicates that they were to take the estate, in case the lessee died possessed of it, and were limited by the same restriction as the ancestor. The adoption of the word "heirs," in this connection, is repugnant to the limitation of the estate for the life of the lessee, arising from the want or omission of that word in the habendum clause. It occurs in the premises, a part of the lease prior to this clause, and of the most considerable importance to the lessee. It is no more probable that the word was there included unadvisedly, than that it was so omitted in the very *Page 360 next clause of the lease. In my opinion, this use of the word "heirs," is repugnant to the construction assigning to the lessee a life estate only, as claimed for the plaintiffs by reason of the omission of that word in its appropriate place. The rules of law, before referred to, demand this construction. It is also in harmony with the use of the estate, as one of inheritance, since the death of Thornton in 1813. The lessors have not, nor have their heirs, been in the possession of the premises or privileges granted since that period, when, if the plaintiffs are right in their claim, the term granted was at an end; nor have they ever refused to receive the rent reserved by the lease, but it has been regularly paid by the occupants of the premises as upon a perpetual lease. While I do not regard the payment and receipt of rent as an estoppel to the claim of the plaintiff, it is important evidence, tending to prove an admission of the claim of the defendant to hold the premises, under the lease, in perpetuity. The small rent reserved must have been for many years past a mere nominal sum, and had not all parties acted on the belief that the term granted was perpetual, the plaintiffs would long ago have found it to their interest to claim their legal right of re-entry. The presumption is very decided, that they acted upon the original intention of the grant, as conveying an inheritable estate, which the plaintiffs could not interrupt or determine, while the rent was paid and the covenants and conditions of the lease were performed. The word "heirs," where it occurs in other parts of the lease, was necessary, as the law existed at its execution, to preserve a cause of action against them in case the lessee died, leaving rent unpaid, or covenants broken, where damages had accrued in his lifetime. Such a use of the word in the conditional orreddendum clause, and in the covenants of the lessee, is not therefore inconsistent with the claim of the plaintiffs. Nor is the argument conclusive against the plaintiffs, drawn from the recitals in the granting portions of the lease, wherein it is stated that the premises are in the actual tenure of the *Page 361 lessee, and have been reserved, theretofore, by James Duane. I use the word premises, for the reason that the grant of the privilege to erect mills carries the site or land upon which they are to be erected, by implication, and the grammatical construction applies the word "reservation" to the land as the last preceding subject, to the use of which the lessee and his heirs are restricted. Again, the word tenure, in its legal signification, is applicable to a leasehold possession for a term of years, or for life, as well as to a fee simple, which the defendants' counsel assumes that it implies. It signifies the manner of holding, only. The word "reservation" is frequently used in deeds and in statutes, as well as in common parlance, to refer to lands as well as to incorporeal rights. A similar use of the word occurs in Corning v. Troy I. N. Factory (40 N.Y., 191). There is no conclusive and satisfactory argument to be derived from a reference to these phrases as used in the lease. These recitals or averments are not essential; they are incidental or collateral to the principal thing, and may be supposed not to have received the deliberate attention of the parties. In such cases the doctrine of estoppel does not apply. (1 Greenleaf's Ev., § 26.) I prefer to rest the case for the defendant upon the use of the word "heirs," in a sense repugnant to the limitation of the term for the life, only, of the lessee. The plaintiffs' counsel also urges that the exceptions to the legal conclusions of the judge, which were in their favor at the circuit, are insufficient. There is a separate and proper exception to the finding that Thornton had only a life estate. Unless this legal conclusion had been arrived at by the judge, there could have been no judgment for the plaintiffs. The judge was in error as to that conclusion, and that was sufficient to reverse his judgment. The judgment of the General Term should be affirmed, and the judgment made absolute against the plaintiffs, with costs, according to their stipulation. *Page 362