Georgia State Savings Ass'n v. Dearing

Hart, J., (after stating the facts). (1) It is first contended by counsel for appellant that under section 733 of Kirby’s Digest the deed from H. L. Dearing, Jr., conveyed to Minnie I. Dearing a fee simple title in the acre of land in El Dorado involved in this suit. The granting clause in the deed was to Minnie I. Dearing and the habendum clause,was “to the said Minnie I. Dearing and her heirs by me of her body born or that may be hereafter to us born, in fee simple forever.” They claim that the granting clause is to Mrs. Dearing and that there are no appropriate words limiting her estate and that therefore she acquired a fee simple title under the deed. They rely on the case of Hardage v. Stroope, 58 Ark. 303, as being conclusive of their contention. We do not think that case sustains their contention. The clause upon which the rights of the parties in that case hinge is as follows: ‘ ‘ To have and to hold the said land unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if at her death there are no heirs of her body to take the said land, then and in that case to be divided and distributed according to the laws of descent and distribution in this State. ’ ’ There the limitation was to the heirs generally and Tennessee M. Carroll acquired a fee simple title. (2) In the present case the effect of the clause in •the deed was not to create a limitation-to the heirs of Minnie I. Dearing in general, but the limitation was to the heirs of her body and she took a life estate. The office of the habendum clause of a deed is to expláin or define the extent of the grant, and is rejected only where there is a clear and irreconcilable repugnancy between the granting and habendum clauses in the deed. In the construction of deeds it is the duty of a court to harmonize the different parts so as to give effect, if possible, to each part. The language of the clause of the deed in question does not bring it within the rule in Shelley’s case, so as to convey an estate in fee simple to Minnie I. Dearing, subsequently Minnie I. McNalley. In conformity to the rule of construction in McDill v. Meyer, 94 Ark. 615, she took only an estate for life. It is contended that the words “in fee simple forever” in the habendum clause enlarges the estate to a fee simple in Minnie I. Dearing. We do not think the habendum clause in the present deed enlarges the granting clause, but that the words “in fee simple forever” mean that the heirs of the body of the life tenant take the remainder in fee simple. This is the construction put upon a similar clause in the case of Dempsey v. Davis, 98 Ark. 570. (3) Thus it will he seen that under the deed of Harry L. Dearing, Jr., to the land involved in this suit, Minnie I. Dearing, afterward Minnie I. McNalley, took a life estate, and their children, Harry L. Dearing, Annie Grace and Irene Garrett, took the remainder in fee simple. Minnie I. Dearing could only mortgage her interest in the land to appellant. At her death the mortgage ceased to be in force, and appellant only had a claim against her estate. (4-5) An administrator of her estate was appointed on February 15, 1913, and appellant did not probate its claim against her estate within one year after the appointment of her administrator. Hence appellant’s claim against her estate is barred by the statute of nonclaim. At the death of Minnie I. McNalley a fee simple estate in the mortgage premises vested in her three children above named. There was no contractual or other relation between them and appellant. They conveyed the land' by deed to other parties, and in the deed it was recited that th,e grantee would assume a certain part of the mortgage to appellant. There was no contractual relation between their grantees and appellant, the beneficiary of the promise, and no consideration moved from appellant either directly or indirectly to the promisors. The rule in this State is that a stranger to a contract between others in which one of the parties promises to do something for the benefit of such stranger, there being nothing but the promise (no consideration from the stranger, and no duty or obligation to him on the part of the promisee), can not recover thereon. Thomas Mfg. Co. v. Prather, 65 Ark. 27; Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223; Kramer v. Gardner, 104 (Minn.) 370, 22 L. R. A. (N. S.) 492, and case note, and Fry v. Ausman (S. D.), 39 L. R. A. (N. S.), 150. It follows that there was no liability on the part of the defendants and the mortgage was not a lien on their interest in the land. The chancellor was right in dismissing the hill of appellant for want of equity, and the decree will he affirmed.