Green Bay & Mississippi Canal Co. v. Hewett

Lyon, J. The plaintiff company claims title to the whole of the land in controversy under a deed from Morgan L. Martin to it, executed in February and recorded in May, 1873. The defendants Hewett claim title to an undivided half of the same land under a deed to them executed by said Martin, and recorded in January, 1880. For the purposes of the case it will be assumed that Martin was the absolute owner of the land, in fee, when he executed the deed thereof to the plaintiff in 1873, and that he derived title to an undivided one-half thereof by a deed theretofore ’ executed to him by one Lawe, who then owned the same, and to the other undivided half by a deed dated December 23, 1871, executed to him by one Evarts, sheriff of Outa-gamie county, pursuant to a sale- thereof on execution. The deed from Martin to the defendants Hewett purports to convey the same tract conveyed to him by Lawe. This deed puts the title to the undivided half which Martin derived from Lawe in the defendants Hewett, unless that interest passed to the plaintiff company by virtue of the deed of 1873. "Whether that interest did so pass to the plaintiff under that deed is the controlling question in the case, and the only one it is necessary to determine. By the deed of 1873, Martin “ released, quit-claimed and conveyed to the plaintiff, and its successors and assigns, forever, all of his claim, right, title and interest of every name and nature, legal or equitable, in and to all of the following described liroperty.” (Then follows a description of the land in controversy.) Thereinafter we find this clause: “The interest and title intended to be conveyed by this deed is that, and that only, acquired by said Morgan L. Martin by virtue of a deed executed to him by Almeron B. Evarts, sheriff of said Outagamie county, dated December 23,1871.” These are the only clauses in the deed of 1873 which affect the question under consideration. The solution of this question is not without difficulty, but it is made less difficult [103] by the arguments of the learned counsel on both sides, which display great learning, research and ability. Counsel for the defendants maintain that the granting clause in the deed of 1873 is ambiguous, and have predicated an argument thereupon, and cited many adjudications to support it, that in such a case the last clause above quoted must control the construction of the deed. We cannot adopt the position of counsel. It seems very clear to our minds that the granting clause is not ambiguous. It conveys to the plaintiff, in express terms, all of Martin’s “ claim, right, title and interest, of every name and nature, legal or equitable, in and to all of the following described property,” being the land in controversy. It is not perceived that Martin could have employed plainer or more -certain language to effectuate his purpose and intention to convey all of his interest in all of the land in controversy to the plaintiff. On the assumption that the sheriff’s deed conveyed to Martin only an undivided half of the land, the clause last quoted is equally free of ambiguity. It is a plain, unmistakable expression by Martin of his intention to convey to the plaintiff only an undivided half of the land. The rule has been invoked that deeds and contracts should be construed in accordance with the intention of the parties to them. But that is subject to this. other rule, that if the instrument is free of ambiguity, such intention must be ascertained from the language of the instrument itself. In such cases, as was tersely said by Lord Denman in Rickman v. Carstairs, 5 B. & Ad., 651 (663), “the question is, not what was the intention of the parties, but what is the meaning of the words they have used.” Or, as was said with equal terseness by the late Justice Paine, in Farmers’ Loan & Trust Co. v. Commercial Bank, 15 Wis., 463 (480), “ the sole duty of construction is to find out what was meant by the language of the instrument.” See also Hubbard v. Marshall, 50 Wis., 322, and cases cited. Looking to the language employed in the deed of 1873, [104] we find two conflicting intentions clearly expressed — one just as clearly and emphatically as the other. In the granting clause the grantor expresses an intention to convey his whole interest in the land, while in the other clause he expresses an intention to convey only an undivided half of his interest therein. It may here be observed that the last clause is neither an exception nor reservation, as those terms are defined in the law of conveyances. The most that can be claimed for it is, that it performs the office of an habendum. Yet it scarcely performs that office. It seems to be nothing more than a mere declaration of intention by the grantor in conflict with that already expressed by him-in the premises or granting clause of his deed. Which of these two conflicting clauses in the deed of 1813 should prevail? This question must be determined by rules of law other than those already mentioned governing the construction of deeds. One of these rules is, that a deed is always construed most strongly against the grantor. 4 Green-leaf’s Cruise, Real Prop., p. 302, tit. 32, ch. 20, § 13. Another is, that where there are two clauses in a deed, and the latter is contradictory to the former, the former shall stand. This is an application of the ancient rule, or maxim that “the first deed and the last will shall operate.” Id., p. 300, tit. 32, ch. 20, § 9. As, where a feoffment in fee is made to A. during the’life of B., the words “ during the life of B.” will be rejected because they are contrary to the fee. Id., p. 30T, § 6. If the subsequent clause in the deed of 1873 is regarded as an habendmm, then we have this rule laid down by Cruise in the title above cited (ch. 21, §§ 75, 76): “Where the habendum is repugncmt mid aont/ra/ry to the premises, it is void, and the grantee will take the estate given in the premises. This is a consequence of the rule already stated, that deeds shall be construed most strongly against the grantor; therefore he shall not be allowed to contradict or retract, by any subsequent words, the gift or grant made in the premises. [105] Thus, if lands are given in the premises of a deed to A. and his heirs, habendum to A. for life, the habmcktm is void, because it is utterly repugnant to and irreconcilable with the premises.” Applying either of the above rules to the deed of 1873, it results that the premises or granting clause therein controls the other clause which conflicts with it, and hence that the deed conveyed to the plaintiff the whole of Martin’s interest in the land in controversy. The foregoing are doubtless, to some extent, arbitrary rules of construction, and, because they are so, should not be resorted to except in cases of absolute necessity. If from the whole instrument the true intention of the parties can be gathered, that intention should prevail; but where, as in this case, two conflicting intentions are plainly and unequivocally expressed, there is no alternative but to construe it by these rules, even though they may be arbitrary rules. Ye have not found it necessary to refer to the numerous cases cited-by th« respective counsel. In many of those cases cited by counsel for the defendants, the courts found that there was ambiguity in the granting clauses which left the courts free to effectuate the intentions expressed in the subsequent clauses, or the granting clauses contained some reference to such subsequent clauses, showing an intention that the latter should control. It is believed that our views of the case are sustained by the great weight of authority. Certainly they are sustained by many of the cases cited by counsel for the plaintiff, among which is Pynchon v. Stearns, 11 Met., 316, which is a very instructive case on the question now under consideration. See also the cases there cited. Ve conclude that the circuit court correctly found the issues for the plaintiff. The judgment must be affirmed. By the Court.— Judgment affirmed.