Zittle v. Weller

Irving, J., delivered the opinion of the Court. A hill was filed hy the appellants, against the appellees, for the sale of certain real estate for the purpose of partition. The bill was dismissed upon the ground, that the complainants had no interest in the property, because it was held, that Samuel A. Bachtel, the father of the complainant Josephine Zittle, had, in his life-time, conveyed all his interest in the real estate to the ancestor of the defendants, Jacob Weller. The sole question, presented by this appeal, is the construction of the deed from Samuel A. Bachtel to Jacob Weller. Being entitled to the estate in fee, on the 28th of June, 1852, Samuel A. Bachtel conveyed to his mother, Harriet Bachtel, one undivided third part of the lands during her widowhood. On the 19th of May, 1853, he executed to Jacob Weller the deed which raises the present contro — 195 — versy. The reversion in fee to the grantor and his heirs, was expressly reserved in the deed to Mrs. Bachtel. She died two years ago, and the complainant, Mrs. Zittle, the only child and heir-at-law of Samuel A. Bachtel, filed her bill claiming one-third part of the lands and asking for a decree for its sale for partition. The appellees contend, that the reversion of Samuel A. Bachtel in the undivided third conveyed to his mother passed by his deed to Jacob Weller. The granting clause of this deed reads thus, “and by these presents do grant, bargain and sell unto the said ■Jacob Weller, his heirs and assigns, all their estate, right, title and interest, trust property, claim and demand whatsoever at law and in equity, of ' them, the said Samuel A. Bachtel and Nancy his wife, of, in, and to the following described parts of tracts or parcels of land situate in the county and State aforesaid, viz., the first part being part ■of a tract of land called ‘Bachtel’s Abode,’ beginning at a white oak tree marked with three notches,” &c., &c. * * The second parcel being also a part of said resurvey, called ‘BachteFs Abode,’ beginning,” &c. * * “The third parcel being a tract of land called ‘ Poor Ohance,’ beginning at a white oak tree about ten perches north of the spring, and containing sixty-six acres, as will more fully appear from a plat of S. S. Downin, S., Washington County; the three parcels of land herein conveyed, are supposed to contain four hundred and forty acres. It is understood by the parties herein mentioned, that the interest herein conveyed, is the two-thirds of the above ■described land.” Immediately following this description of the property conveyed follows this language: “ And the said Samuel A. Bachtel and Nancy his wife binds themselves, their heirs, assigns and administrators, to the said Jacob Weller, his heirs and assigns, to make no further claims or demands more than the above written amount of money.” Then follows the usual language — 196 — about buildings and appurtenances, and the usual habendum clause, and a covenant of warranty for further assurances. It is a cardinal principle in the construction of deeds, contracts and wills that the intention of the parties shall prevail unless it violates or infringes some established principle of law. (Hope vs. Hutchins, 9 G. & J., 78.) To-ascertain- this meaning and intent of the parties resort must be had to the whole deed that every word of it may take, effect and none be rejected. This is a well-established and ancient rule of construction. Sheppard’s Touchstone, 81. • Chancellor Kent says, in the 4th vol. of |his Commentaries, (11th edition,) page 466, margin, that “in construing deeds Courts will give effect to every part of the description, if practicable.” Eollowing these rules we have no difficulty in determining the intention of the parties to this deed, which though not skillfully drawn and couched in the most appropriate language, is nevertheless sufficiently intelligible to leave our minds in no doubt as .to the real understanding of the parties in making and accepting the deed. In holding that this deed did not convey to Jacob Weller but two-thirds interest in the land, we do no violence to the rule which requires a deed to be construed most strongly against the grantor; for the authorities say this rule is to be resorted to, and relied on, only where all other rules of exposition fail to reach, with reasonable certainty, the intention of the parties. Being “a rule of strictness and rigor,” Bacon quaintly says, in “ Maxims of the Lato,” rule 3, “ it does its office, but in the absence of other rules which are of more equity and humanity.” 1 Sheppard’s Touchstone, 88, and note; “Bacon’s Law Tracts,” p. 46; Pike vs. Munroe, 36 Maine, 314. The rule that where there are two contradictory or repugnant clauses in a deed, the first clause shall prevail over the latter, has no application in this case; for this is not an — 197 — instance of such repugnance. The supposed contradiction' is not between two clauses, but between parts of the same clause. It is between sentences in the granting clause ■describing the property conveyed. In the deed before us, the descriptive words with which the granting clause starts out, would be sufficient to carry all the interest of the grantors in the property, if there were no words added to indicate that less than the whole land, or less than all the grantor’s interest therein was being granted; but there are words, and most material words added to the description, restricting the estate conveyed to two-thirds of the property described. If the ■description had been prefaced with this language, or if it had been stated that the parties “granted, bargained and •sold two-thirds interest in the following property,” no controversy could have arisen. But because the language ■concludes the descriptive and granting clause it is claimed to be repugnant, and that it must be disregarded. As the intention of the parties is the primary object to be •sought after, we do not see why language expressly declaring what that intention is shall be disregarded and pronounced null. If the language were at the end of the ■deed without any connection with the granting clause, there would be some ground for invoking the rule, that the first clause of the deed shall prevail over the latter. But here the description of the estate conveyed is closed with the express declaration of what the parties mutually understood as being bought and conveyed. The clause is not dexterously constructed, but the language closing the description is not ambiguous or equivocal, and must be construed as restricting the first words of the description to a grant of all the grantor’s estate and interest in two-thirds of the property. The language used in the beginning is, “all their estate, interest, &c., in the following described parts or parcels of land;” and apart of that •description referred to, is the express statement that the — 198 — interest in those parcels of land which have been described, is a two-thirds interest. If instead of the language used it had ended thus: “that is to say, the said grantors do-grant and convey two-thirds interest and estate in the above described parcels of land,” it could hardly have-been contended that more than two-thirds thereof would have passed. The suggested language is not more explicit, though it may be more formal. The reasoning of this Court in Mims vs. Armstrong, Cator & Co., 31 Md., 95, is especially applicable to this case, and the principles-there applied must control this decision. Borrowing the language of the Court in that case, we may say, that “to-withhold this meaning from the words employed is to-deny them all import whatever; and that is justified by no rule of construction.” The covenant to make no further demand, “ more than the money mentioned,” which immediately follows the language declaring the interest or estate conveyed, and which has been relied on by appellees’ counsel in support of his construction, can have no-such effect. It is only a covenant to demand or claim no-further money consideration for that which was sold than the money named. If the acreage of the land sold should prove larger than the estimate named in the deed,, the grantors would be concluded by this covenant to claim no more money. There is a covenant of warranty in the deed, and for further assurances, but these covenants, can only relate to and operate to assure the interest and estate which is described as conveyed. The construction of every instrument depends upon ita own peculiar language, for the slightest difference in phraseology may, and often does change the meaning, and control the interpretation. Hence it is that adjudged cases are rarely found presenting exact analogy, and are-seldom controlling, except as to a principle declared. Cases bearing some analogy to this one have been cited by appellees’ counsel, which seem to have influenced the — 199 — decision in the Circuit Court. Without expressing any approval of, or dissent from, those cases, it is enough for us to say, that we think the language of this deed materially differs from that employed in the deeds they construe ; and that whereas the intention may have been sufficiently obscure in them to apply the rule of construction most strongly against the grantor, the intention of the parties here is too clear to he disregarded. We may add that quite a number of the cases cited by the appellant’s counsel has strong analogy to this, but our decision is rested upon the language of the deed. If it had been intended by the parties in the language declaring only two-thirds interest was conveyed, only to exclude the life estate of the grantor’s mother in one-third of the estate, other words would most certainly have been used. There is no mention made of the life estate or the life tenant. We only know there was one by extrinsic testimony. We will only add that this decision in no respect conflicts with Stockett vs. Goodman, 47 Md., 54. In that case the subsequent language was clearly used for the sole purpose of identification and further description, and not by way of restriction. Finding the Circuit Court erred in dismissing the complainant’s bill, the decree must be reversed. (Decided 13th February, 1885.) Decree reversed, and cause remanded.