Bauman v. Stoller

Mr. Justice Scott delivered the opinion of the court: The Appellate Court regarded the question whether the contract provided for the payment of liquidated damages or whether the sum therein mentioned was merely a penalty as not open for consideration in that court. Appellant, by his statement, seeks to show that this proposition was properly presented there and that it is one that can now be determined in this court. He has not, however, by his brief and argument cited authorities or stated reasons for the purpose of showing that the view of the circuit court in reference to this matter was incorrect, therefore we will not consider the question. It is conceded by the parties that Lawrence Doyle was the owner in fee of this property in 1882, and the only question necessary to be decided is whether the circuit court erred in passing on propositions of law involving a construction of the deed executed by him and his wife to Frank Doyle, in 1882. That court held, in accordance with the contention of appellee, that by that deed a contingent interest in the real estate therein described was conveyed to the children of Frank Doyle and that the later deed made by Lawrence Doyle to Frank Doyle could not affect that interest, while appellant contends that under the first deed from Lawrence Doyle and wife Frank Doyle acquired title in fee simple to the premises. That deed was drawn on a printed blank form prepared to accord with section 9 of chapter 30, Hurd’s Revised Statutes of 1905. As will be seen from an inspection of that instrument, which is set forth in the foregoing statement, it is recited that the grantors, in consideration of a certain sum, “convey and warrant to Prank Doyle, of the town of Waldo,” etc., an eighty-acre tract, describing it. Following that is an attempt to place a limitation upon the power of alienation, and then the instrument provides, among other things, that in the event of the death of the grantee leaving children prior to the death of his wife, the wife and children are to take an estate in the property. Appellant’s theory is, that the words “convey and warrant,” found in the granting portion of the deed, vested a fee simple estate in Frank Doyle, and that the words by which an interest was given to the children were repugnant to the words “convey and warrant,” and being found in a portion of the deed succeeding the premises are without effect, and the deed is precisely as though the words of attempted limitation were not written therein at all. Section 9, supra, provides that every deed which is, in substance, in the form set out in that section shall be deemed and held a conveyance in fee simple to the grantee, his heirs or assigns, with certain covenants unnecessary to be here repeated. Section 13 of the same act is in words as follows: “Every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be- not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.” Appellant argues that the words of this section, “if a less estate be not limited by express words,” have no application to a deed prepared in the form set out in section 9, for the reason, as he says, that section 9 makes the words “convey and warrant” equivalent to the words which were “necessary to transfer an estate of inheritance” prior to the enactment of section 13, and the deed, therefore, is as though such “necessary” words were actually used in the granting clause. Appellant relies principally upon the cases of Wolfer v. Hemmer, 144 Ill. 554, Palmer v. Cook, 159 id. 300, and Walker v. Shepard, 210 id. 100. In the case of Wolfer v. Hemmer a testator by one clause of his last will and testament devised to his wife, “her heirs and assigns,” certain real estate. By a subsequent clause it was contended that he had attempted to cut down the estate so devised to her. It was there held that section 13 had application only where “words heretofore necessary to transfer an estate of inheritance be not added,” and that as to real estate devised by the earlier clause section 13 had no application, because the words of devise used in that clause were those which prior to the passage of the statute were the precise words necessary to transfer an estate of inheritance. In Palmer v. Cook a deed was drawn substantially in the form set out in section 9. It ran to two grantees, and concluded, after the description of the land and the reservation of a life estate to the grantor, with these words: “And further, in case either of the grantees dies without an heir her interest to revert to the survivor.” In that case the court refused to apply section 13, saying that the deed effected an absolute fee simple conveyance by the first clause thereof and vested the estate, and that the language above quoted from the deed was inoperative because it was an attempt to place a limitation upon the fee conveyed by the words found in the premises of the deed. This case supports appellant, but as we will hereafter point out, it is in conflict with the later case of Cover v. James, 217 Ill. 309, and it must therefore yield to the latter. In Walker v. Shepard the words of attempted limitation follow the description in the deed, which was in the statutory form, and they were held inoperative, not because the estate granted by the words “convey and warrant” could not be made an estate less than the fee by words following the premises of the deed, but because the words which there followed did not amount to a limitation up^n the estate otherwise conveyed, but were merely an indication of the intention of the grantor that the grantee should not dispose of the property during her lifetime, it being said that the words contained in a deed merely expressive of the purpose animating the grantor in making it were not sufficient to limit the estate conveyed. The power of the grantor, however, to limit the conveyance made by a deed prepared in accordance with the form set out in section 9, by words found in the portion of the deed following the description of the real estate, was expressly recognized in these words (p. m) : “The words of grant, ‘convey and warrant,’ convey the fee unless they are limited to a lesser estate by words found in the granting clause or in the ha-bendum of the deed, if it contain an habendum. They may be used, however, in conveying a life estate or an estate for years, and words limiting the estate conveyed to an estate of the character of either of the two last mentioned are not inconsistent with such words of grant; and where there is. language, either in the granting clause or in the ha-bendum of the deed, limiting the estate conveyed by such granting words to one less in extent than a fee, such words of limitation will be given effect.” We regard the law as stated in Cover v. James, supra, as decisive of this controversy. In that case the grantor, by a deed substantially in the form provided by section 9, conveyed to A. Ford Cover and Bessie Cover certain real estate, using only the words “convey and warrant” in the granting clause and following the description with this language: “In case of the death of either A. Ford Cover or Bessie Cover the other to have the whole of said property without litigation.” It was contended on the one side that the quoted words were without effect, and on the other that in the construction of the deed these words should be given their literal meaning. The question was .discussed at some length in the opinion, Palmer v. Cook, supra, being again considered, and it was said in reference to the deed in the Palmer case (p. 313): “Merely because the deed was substantially in the form prescribed by section 9, however, a fee simple title was not necessarily conveyed. That section prescribes the form of the deed, and provides that every deed substantially in that form shall be deemed and held to be a conveyance in fee simple to the, grantee, etc.; but it must be construed in connection with section 13, supra, under which, if a less estate be limited by expreás words or appear to have been granted, conveyed or devised by construction or operation of law, the conveyance, not using words heretofore necessary to transfer an estate of inheritance, shall not be deemed, to convey a fee simple estate.” The conclusion reached was that the words following the description of the real estate in the Cover deed were a limitation upon the title, which otherwise would have been conveyed by that deed. Manifestly, the purpose of the legislature in enacting section 13 was to require that every word used in a conveyance, no matter in what part found, should be given weight in construing the instrument, where the party making the conveyance did not use words of grant or devise which at common law would have conveyed an estate of inheritance. The doctrine by which words in some part of a deed following the premises, which apparently cut down or reduce the estate conveyed by the words of grant, shall be disregarded as repugnant to the words of conveyance, has no .application where the granting words are not such as would at common law convey an estate of inheritance. Such having been the legislative intent, Cover v. James, and the cases upon which it rests, should be followed rather than Palmer v. Cook. The phrase, “if a less estate be not limited by express words,” found in section 13, must be applied to a deed drawn in accordance with section 9 where the only granting words are “convey and warrant.” We think the children of Frank Doyle took a contingent remainder under the deed of 1882, and as the abstract of title did not reveal anything which would defeat that remainder it failed to show a merchantable title in appellant. The judgment of the Appellate Court will accordingly be affirmed. Judgment affirmed.