O'Brien v. Brice

Snyder, Judge, announced the opinion of the Court: It is properly conceded by the plaintiff and defendants that, by the terms of the aforesaid deed of March 15, 1867, from Robert and Epbriam Brice to William Brice and Rebecca C. his wife, the said Rebecca C. became the owner in fee of one undivided moiety in said land and by the death of her husband she became entitled to a dower in the other moiety. It results, then, that, at the time she made the deed of November 5, 1875, she was the owner in fee of one-half of the said tract of land and had dower in the other half, the remainder in the latter half having become vested in the infant children of said William Brice, deceased. If said deed conveyed her whole interest in said land in trust, then the subsequent deed of November 20, 1875, to Thomas [707] O’Brien, trustee, passed no title or interest except the equity of redemption subject to the satisfaction of the debts secured in said prior deed,' and the plaintiff, who claims title under that deed, acquired no title or interest from said trustee other than said equity of redemption. The simple and only question, therefore, presented by the demurrer is, did said deed of November 5,1875, convey both the moiety and the dower owned by said 'Rebecca C. in said land ? Of course she could convey nothing as administratrix having no power or authority to do so. It is argued by the appellant’s counsel that a proper interpretation of said deed limits its operation to a conveyance of the dower-interest only; and ho relics principally upon the punctuation used in the premises to justify this conclusion. In the interpretation of written instruments very little consideration is given by the courts to the punctuation, and it is never allowed to interfere with or control the sense and meaning of the language used. The words employed must be given their common and natural effect regardless of the punctuation or grammatical construction. If the construction contended for by the appellant is permitted, the words “in her own right” can have no effect; because a. conveyance of her dower and a conveyance of her dower in her own right mean one and the same thing. This would be equivalent to an entire elimination of those words from the deed. Such a construction would violate the well settled rule, that where it is possible, effect must be given to every sentence, phrase and word, and the parts must be compared and considered with reference to each other. Applying this rule and changing the punctuation the sentence will read, “Rebecca C. Brice in her own right, as widow and also as administra-trix.” This gives to the words their common and natural meaning, and gives effect to each word and the whole sentence together. In this form it is apparent that the deed conveys not only the dower, but the moiety held by the grantor in her own right. This it seems to mo was clearly the intention of the parties, as shown by other parts of the deed. The granting clause, which is the controlling and operative part of every deed, conveys the land absolutely without any limitation or qualification whatever; and if the [708] grantor bad intended to grant her dower right only, the granting clause would have been the proper, if not the only part of the deed, where she could have expressed that intention. Descriptive words in the premises usually can have no other effect than to designate the parties and will not be construed as -limitations of the estate conveyed. The intention is made still more obvious by the manner in which the deed is signed — Smith v. Henning, 10 W. Va. 600. My conclusion, therefore, is that the said deed of November 5, 1875, operated as a conveyance of all the interest held by the said Rebecca C. Brice in the said tract of one hundred and forty-eight acres of land, and said deed having been recorded before the deed of November, 20, 1875, under which the plaintiff claims, was executed, the latter deed conferred upon the grantee therein no title or estate except the equity of redemption, and consequently said equity is all the plaintiff had when he instituted this suit. The legal title to the land, being thus vested in other persons, and the plaintiff's bill not having been framed for the purpose of obtaining a partition of the land subject to the said trust-deed of November 5, 1875, the court below properly sustained the demurrer to the bill. It is probable a bill might have been drawn, or the one in this cause so amended, as to have entitled the plaintiff, as owner of an equity, to a partition of the land subject to the lien of the prior trust-deed, but as he declined to amend his bill in the circuit court, that court rightfully dismissed his bill with costs. _ For these reasons, I am of opinion that the said decree of the circuit court of June 28, 1880, should be affirmed with costs to the appellees and thirty dollars damages. The Other Judges Concurred. Decree Affirmed.