Utter v. Sidman

MARSHALL, -J. This is a proceeding under the Act of 1897 (Laws 1897, p. 74), being now section 650, Revised Statutes 1899, to have adjudicated the rights-of the parties in respect to a certain tract of land, containing one and three-fourths acres, in the city of Springfield. The plaintiffs are the only children of Prance's A. Leedy, who is now' sixty-five years of age and alleged to be beyond the possibility of having other issue of her body, and the defendants are in possession of the land claiming title from Mrs. Leedy, by a deed which' purported and attempted- to convey the fee. The case calls for the construction of a deed to the property which is as follows: "Know all men by these presents: That I, James A. McCullah and I. A. McCullah, his wife, of the county of Stone, in the State of Missouri, have this day, for and in consideration of the sum of three thousand dollars to the said James A. McCullah in hand paid by Prances A. Clark, of the county of Polk, in the State of Missouri, granted, bargained and sold, and by these presents do grant, bargain, sell and convey unto the said Prances A. Clark, the following described tracts or parcels of land, situated in the county of. Greene, in the State of Missouri, that is to say: Beginning at a point 607 feet north of the southwest corner of the northwest quarter of the northwest quarter of section 13, township 29, range 22, thence north 135 feet, thence east 25 rods, thence south 135 feet, thence west to the place of beginning; containing one acre and three-fourths of an acre, more or less. “To have and to hold the premises hereby conveyed, with all the rights, privileges and appurtenances-thereto belonging, or in anywise appertaining, unto-the said Prances A. Clark and her bodily heirs and assigns, forever, I, the said James A. McCullah, hereby covenanting to and with the said. Frances A. Clark, her heirs and assigns, for herself, her heirs, executors and administrators, to warrant and defend the title of the premises hereby- conveyed, against the claim of every person whatsoever. — 289 — “In testimony whereof we have hereunto subscribed onr names and affixed onr seals this 28th day day of February, 1873. “Jambs A. McCullah:, (Seal.) “I. A. McCullah, (Seal.)” The petition set out the deed and the facts here stated and asked that the court ascertain and determine the estate, title and interest of each of the parties and decree to each his interest therein. The defendants demurred generally. The court overruled the demurrer. The defendants refused to plead further, judgment was rendered decreeing to defendant Rebecca Sidman a life estate in the premises and to the plaintiffs as tenants in common the remainder in fee simple. From this judgment the defendants appealed. I. This action is maintainable under the Act of 1897, without regard to the nature of the estate or interest claimed by the plaintiffs, and without regard to whether that interest be legal or equitable, certain or contingent, present or in reversion, or in remainder, or whether the plaintiffs are in possession or not, or whether the plaintiffs are entitled presently to possession or not. Such is the object and the effect of the statute. [Meriwether v. Love, 167 Mo. 514.] II. The defendants pointedly state their position as follows: “The different parts of the deed, as set out in the petition, show the following inconsistent clauses, i. e., first, the granting clause uses the words ‘grant, bargain and sell,’ and grants, without limitation, an estate in fee simple; second, the habendum clause, while apparently attempting to limit the estate in fee granted by the granting clause, by the use of the words ‘bodily heirs,’ also defines the estate as one to be held by the grantee and her ‘assigns,’ and, third, the warranty — 290 — clause warrants tiie title in the said grantee, ‘her heirs and assigns, for herself, her heirs, executors and administrators, ’ ‘ against the claim of every person whatsoever,’ thereby covenanting to defend the fee simple-estate granted, in the granting clause, to the grantee. ‘ ‘ The defendants demurred to the amended petition and in the argument thereof claimed that the granting clause, under the statute, conveyed the fee simple estate; that the attempted ambiguous limitation in the habendum clause was void, because inconsistent with the granting clause; that there could be no limitation after a fee; that the apparent limitation was inconsistent with the absolute power of disposition recognized in the same clause where the words of limitation were used, and that the warranty clause supported the granting clause and was absolutely inconsistent with the habendum, in covenanting to defend, in the grantee and her heirs and assigns, the unlimited estate granted in the premises.” On the other hand, the contention of the plaintiffs is that there is no repugnance between the several clauses of the deed; that the granting clause and the habendum clause can be construed together and made to harmonize, by construing the granting clause to convey only a life estate to Mrs. Clark, and the haben-dum clause as conveying a remainder in fee to her bodily heirs; that the intention must be “gathered from the four corners of the instrument, ’ ’ and that while in cases of necessary repugnance between the premises and the habendum in a deed,; the habendum must give way, still the habendum may lessen, enlarge, explain or qualify the estate granted in the premises; that while the habendum is no longer essential, still when employed it may be looked to in order to ascertain the intention of the grantor; that the term “assigns” employed in the deed, may as properly be construed to mean the assigns of Mrs. Clark’s bodily heirs, as it may be to mean Mrs. Clark’s assigns, but that in no event can the use of that term define or enlarge the estate granted to Mrs. Clark. — 291 — Per contra the defendants reply by saying that'the term, “her bodily heirs,’’ is inconsistent with three-fourths of the other clauses in the deed and as the granting clause conveys the property to Mrs. Clark, and as the habendum clause is to “assigns” and as'the warranty clause also embraces “assigns” it must follow that Mrs. Clark took a fee simple and the term * ‘her bodily heirs ’ ’ must give way. Devlin on Deeds (2 Ed.), vol. 1, sec. 214, thus states the rule: “Where proper words of limitation are employed in the granting clause, there is no benefit to be obtained by the habendum. Where there is a repugnance between the words expressing the grant and the habendum concerning the estate the grantee is to take, the rule governing the construction of all contracts will'be applied, and effect will be given to both clauses if possible. Yet where there is a definite limitation in the words of the grant, and there is a conflict between them and the habendum, the latter must yield. If it, appears from the whole instrument that it was intended, hy the habendum clause to restrict or enlarge the estate conveyed by the words- of grant, the habendum clause will prevail.” Lord Coke contends that the habendum could enlarge but not abridge the estate granted by the granting clause. [2 Coke Litt., 299a.] In Mississippi, Pennsylvania and Canada it is held that a fee granted in the premises can not be cut down by the habendum to a life estate. [Robinson v. Payne, 58 Miss. 690; Moss v. Sheldon, 3 W. & S. (Pa.) 160; Berridge v. Glassey, 112 Pa. St. 442; Owston v. Williams, 16 U. C. Q. B. 405.] It has also been held that where by the premises a fee is granted to one person, and by the habendum the fee is granted to a different person, the habendum is void. [Hafner v. Irwin (4 Dev. & Bat.), 20 N. Car. 433.] But it has also been held that where by the habendum the grant to a person different from the person named in the premises, was not immediate but was by way of remainder, there was no repugnancy between the premises and the habendum and the grant — 292 — would be construed to be a life estate to tbe person named in tbe premises, with a remainder in fee to tbe person named in tbe babendum. [Brooks v. Brooks, Cro. Jac. 434; Spyre v. Topham, 3 East 115; Berry v. Billings, 44 Me. 416; Irvin v. Longworth, 20 Ohio 581; Blair v. Osborne, 84 N. Car. 417; Sheppard’s Touchstone, 151.] Where a husband, by means of a third person, conveyed tbe title to land to bis wife in fee simple, baben-dum to tbe wife during widowhood, remainder in fee to tbe heirs of tbe grantor, it was held, construing tbe instrument in the light of tbe surrounding circumstances, that the intention of tbe grantor was to make-provision for bis wife during her widowhood and for tbe education and maintenance of bis infant son by her, and that to effectuate tbe intention of the grantor, tbe limitation of tbe estate in tbe habendum would prevail over tbe conveyance in the premises, so that the.wife took a mere estate during her widowhood, which, was forfeited by her second marriage. [Whitby v. Duffy, 135 Pa. St. 620.] To tbe same effect are the cases of Barnett v. Barnett, 104 Cal. 298; Powers v. Hibbard (Mich.), 72 N. W. 339, and Fogarty v. Stack, 86 Tenn. 610. Devlin on Deeds (2 Ed.), vol. 1, sec. 219, says: “Where there is no repugnance between tbe granting’ clause and tbe babendum, a party not named in tbe former may take tbe deed if named in tbe latter.- Thus, there is no repugnance between tbe two clauses when tbe party who is to take is not named in tbe grant, but may be ascertained, from tbe babendum. A person who is not named in the premises as a grantee may take by way of remainder, but where tbe grant is to one person, tbe babendum can not be operative when it is to-him and another to take as Joint tenants or tenants in common. In-a case of that character tbe babendum would be at variance with tbe grant. Where tbe premises contain a complete grant, tbe babendum can not have tbe effect of defeating or curtailing tbe estate granted. ’ ’ And in section 220 tbe author adds: ‘ ‘ While293 the habendum can not abridge an estate granted, yet where the granting clause does not mention the estate conveyed, the habendum may have the effect of declaring the intention, and may overcome any presumption that in its absence would properly arise from the defect in the preceding clause. But it is to he understood that the habendum, when irreconcilable with the granting clause, is to be rejected, and is to affect the grant only when it can be construed as consistent with the premises. ’ ’ Washburn on Real Property (5 Ed.), vol. 3, p. 458, says, “If, however, the person who is to take is not named in the grant, he may be ascertained if named in the habendum. ... A stranger to' the deed may take by way of remainder, though not named in the premises.” So it has been held that where the premises grant a fee simple and the habendum limits the fee to begin in futuro, which can not be done at common law, the fee vests immediately and the habendum is void. [Carter v. Madgwick, 3 Lev. 339; Germain v. Orchard, Skin. 528, 1 Salk. 346, Show. P. C. 199.] But in the recent case of Murphy v. Gabbert, 166 Mo. l. c. 601, it was held that although the premises contained the words “grant, bargain and sell,” still, as this clause was followed by a clause declaring that it was.the intention of the grantor that the deed was not to take effect until her death, the instrument was a will and not a deed. Numberless other cases could be cited bearing upon the questions here involved, but the foregoing are sufficient to illustrate the intricacies, the pitfalls and the obstacles that the conveyancers of olden times encountered, and that the courts had to grapple with. They are interesting and instructive, but they are not all-controlling nowadays. Then great care was observed to confine to each part of a deed its assigned function. The several parts of the instrument were given an important and controlling meaning, and the place in the instrument where the meaning of the — 294 — testator was to be expressed was considered of the gravest importance. The premises' included all that was contained in the deed preceding the habendum, and embraced the names of the parties, such recitals as were deemed necessary, the consideration and the description of the property. Then followed the ha-bendum, the tenendum, the reddendum, the conditions, the warranty, the covenants, and the conclusion. [1 Devlin on Deeds (2 Ed.), sec. 176.] No one provision was allowed to impinge on the province of another. The general rule was that “if there be a re-pugnancy, the first words in a deed, and the last words in a will, shall prevail.” [Sir James Mansfield, C. J., in Doe v. Biggs, 2 Taunt. 113.] In short, that a grantor might convey as he pleased and his intention and wishes would be observed by the courts, but with this qualification, that he must express his intention in set and technical language and at the proper places and in the right order and clause of the deed. Failing so to do, the courts did not feel called on to bother about his intention, but took what he said first as expressing conclusively his intention and discarded everything else as void for repugnancy. Such a rule of construction made' it almost impossible for any one except a very expert conveyancer to draw an instrument that would stand the test of the rule, and likewise made it very easy for the courts in construing complicated instruments, but it is not so clear that the real intention of the grantor was ascertained or effectuated. The modern rule, which prevails in this State, is much simpler and much more calculated to carry out the wishes of the grantor. The intention of the grantor, as gathered from the four corners of the instrument, is now the pole star of construction. That intention may be expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it no matter in what part of the instrument it is found. Under our statute the words “grant, bargain and sell” in a — 295 — conveyance, cover the modern covenants of title without expressly enumerating them. [Sec. 907, R. S. 1899.] So, too, onr statute, section 4590, Revised Statutes, 1899, provides: “The term ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple, and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant.” In the case at bar the premises were, ‘ ‘ grant, bargain and sell unto the said Frances A. Clark.” The habendum was, “Unto the said Frances A. Clark and her bodily heirs and assigns forever.” The warranty was to “Frances A. Clark, her heirs and assigns.” From this it is argued that by the premises Mrs. Clark took under our statute a fee simple, which could not be cut down by the habendum clause to an estate for life,.under our statute, with a remainder in fee to her bodily heirs. Prior adjudications in this State are pertinent. In Bean v. Kenmuir, 86 Mo. 666, the premises were, “Grant, bargain and sell unto the said party of the second part for her sole use and benefit.” The habendum was, “To the said party of the second part, her heirs and assigns forever, and in case of the death of the said party of the second part, then the said property, with all the rights and privileges therein, shall pass to the husband” of the grantee. The premises, therefore, conveyed a fee simple estate under our statute, and the habendum cut down that estate to a mere life estate in the wife, with a remainder in fee in the husband. It was held that such was the effect- of the deed, and further that the use of the term “assigns” did not enlarge the estate of the wife and only gave her the right to sell her life estate. „ In Bone v. Tyrrell, 113 Mo. l. c. 178, the will provided: “I also give and bequeath to my granddaughter the following real estate: .... to have and to hold the same to her and her children, heirs of — 296 — her body forever.” Brace, J., delivering the opinion of this court, said: “The grant in the devise is to Elizabeth Bone, and standing alone under the statute would have been sufficient to pass the fee-simple title of the grantor to her (Revised Statutes, 1845, p. 219, sec. 2)” [which statutory provision is verbatim the same as sec. 4590, R. S. 1899, above quoted]; “hut this grant being immediately limited by a habendum clause, ‘to her and her children, heirs of her body forever,’ had the effect of passing to her only an estate in fee tail under the statute of thirteenth Edward the First, which under the statute of this State became an estate for life in the said Elizabeth, remainder in fee simple to her children. Revised Statutes, 1845, sec. 5, p. 219” — which is now section 4592, Revised Statutes 1899. The importance and scope of this case can not be exaggerated, especially in view of the old rule touching the matters decided. Let it he remembered that in England and formerly elsewhere, the rule was that if there was a repugnance between the premises aud the habendum with respect to the person to take the grant or the nature and extent of the estate granted, the premises prevailed and the habendum was held void for repugnancy. It was only in cases where the extent .and nature of the estate granted was not specified in the premises but the grant was general, that the habendum was permitted to explain and define the nature and extent of the estate granted. Thus the general rule that the habendum can not cut down the estate granted in the premises was held not to apply, because the grant in the premises being general and that in the habendum specific, it was held that there was no repugnancy, and hence both were allowed to stand. Having thus established what was held to be a consistent rule as to the estate granted, it took but little ingenuity to circumvent the other rule that the habendum could not introduce a new grantee other than that named in the premises, and so it was held that as the estate granted by the premises to the — 297 — grantee therein named was only an estate tail or life estate, and as the habendum bad provided for the remainder in fee, it was consistent to permit the habendum to provide a grantee to take the remainder in fee. In this manner the inexorable old rule was circumvented instead of being modified or made more elastic. But notwithstanding all this it was still held that if the premises conveyed an estate which the law denominated a fee-simple estate to a grantee therein named, then no matter what the grantor said was his purpose or intention in any other subsequent clause of the instrument, and no matter if he afterwards in the same instrument said he did not intend to convey a fee-simple estate, still under the rule that “the first words in a deed must prevail,” it was a fee and nothing else. Now, it is in the light of these old rules, and the shifts and expedients and incongruities that these rules entailed and necessitated, that we must read the learned opinion in Bone v. Tyrrell, supra. And the first proposition that arrests the attention is that a grant in the premises in general terms to a grantee therein named, is under our statute a grant of a fee-simple estate. Under the old rules the qualifying words of limitation in the habendum would have been rejected for repugnancy. But not so now. The manifest intention of the grantor, as gathered from the four corners of the instrument, was effectuated, and that intention was held to be entitled to as much respect when expressed in the habendum as if it had been expressed in the premises. Under the old rule, if the grant in the premises was to a named grantee and her “bodily heirs,” it would be held to create an estate tail, or under our statute a life estate in the first taker with a remainder in fee to the bodily heirs. But under the decision in Bone v. Tyrrell, supra, the result is the same where no such provision is found in the premises, but is found in the habendum. Bone v. Tyrrell, 113 Mo. 175, was quoted approv — 298 — ingly and followed in Rozier v. Graham, 146 Mo. l. c. 360. In that case the premises conveyed the land to Sarah Stillwell. The habendum was, “To have and to hold the above described lot, with all the rights and privileges to the same belonging, unto the said Sarah Stillwell and the heirs of her body forever, with this express limitation that if the said Sarah Stillwell shall die without issue, then the title to the above lot to be vested in the mother of the said Sarah and the heirs of her body forever.” The question was, what title Sarah Stillwell acquired. She claimed she had a fee-simple title. But this court, speaking through Gantt, C. J., looked beyond the premises to the habendum, and held that she had only what would have been a fee tail at common law, and not a fee simple. In Hunter v. Patterson, 142 Mo. l. c. 313, the premises were, “Grant, bargain, sell, convey and confirm unto him the said party of the second part, SScr his-hlrs-sud-sssigns -ÍQmeF’”~a line being drawn as here shown through the words, “and.his heirs and assigns forever.” The habendum was “unto him, the said party and to his heirs and assigns forever.” The covenant of warranty was “unto him the said party of the second part, Ms heirs and assigns.” In this case Robinson, J., speaking for this court, said: “Standing alone, the granting clause proper in the deed as it was with the erasure, would pass the fee simple title to Joseph S. Hunter, but the grant being limited by the clause ‘to said party of the second part, and to the heirs of his body forever,'’ had the' effect to convey to Joseph S. an estate in fee tail only, which, under the above cited statute, became an estate for life in Joseph S. Hunter, with the remainder in fee in his children; and such has been the general construction put upon similar instruments by tMs court in McCullock v. Holmes, 111 Mo. 445; Wood v. Kice, 103 Mo. 329; Reed v. Lane, 122 Mo. 311; Phillips v. Laforge, 89 Mo. 72; Charles v. Patch, 87 Mo. 463; Farrar v. Christy’s Admrs., 24 Mo. 453; Bone v. Tyrrell, 113 Mo. 175; 6 Am. and Eng. Ency. Law, 879. While — 299 — the words of limitation usually appear in the habendum of the deed, it is not necessary that they should, provided they appear in some other part. [McCullock v. Holmes, supra; 3 Wash. Real Prop., 366, 367, 436; Kenworthy v. Tullis, 3 Ind. 96.] In the deed under consideration the words defining and limiting the estate conveyed are found in the premises in connection with and qualifying the granting clause and preceding the formal habendum. The habendum, like any other part of the deed, may be. examined in construing the instrument so as to effectuate the intention of the parties, yet it is not an absolutely essential part of the deed, and in modern conveyancing is being abandoned and quite generally becoming obsolete. If the grant or premises in the deed contain words of limitation, nothing remains for the habendum to accomplish, and it may be dispensed with. So unimportant is the habendum that if repugnant to the limitation appearing in the premises it will be ineffectual to control the premises, and it may be rejected entirely when repugnant to or inconsistent with other clauses of the deed. [Major v. Bukley, 51 Mo. 227; 3 Wash. Real Prop., 337.] In Charles v. Patch, supra, the words of limitation were: ‘To the said Elizabeth Charles and to the heirs of her body and their assigns forever.’ Ray, J:, who wrote the opinion, held that she took an estate for life only. In 5 Am. and Eng. Ency. Law, 457, the rule is thus stated: ‘If the limitation in one part is to A. and his heirs generally, and in the other part the estate is limited to A. and the heirs of his body [as in this case], the two descriptions of the estate are not necessarily contradictory, and the specific' limitation will prevail over the general limitation. In such cases the estate granted will be an estate tail.’ [Citing numerous authorities approving that rule of donstruction.] Here the grant in the premises is to Joseph S. Hunter, with specific limitations ‘to the heirs of his body, ’ while in the habendum it is to him and his heirs generally. Under the authorities above cited the latter — 300 — clause of the habendum must give way to the former clause of the premises, and the deed construed as creating a life estate in Joseph S. Hunter, with remainder to his children, the plaintiffs herein. By this construction, meaning and effect is given to all parts of the deed in consonance with the canons of construction before mentioned, so that the deed takes effect in the manner contemplated by the parties thereto. The authorities cited by counsel for defendants are not in conflict with the views here expressed.” So that the terms of the granting clause, to A. and his heirs and assigns, was held not to overcome the habendum to A. and the heirs of his body, on the ground that the premises were general, while the habendum was specific or limited. Thus it will be seen that even though the granting clause be by words which, standing alone, under our statute, create a fee simple, in a named grantee, still if the intention of the grantor, even though expressed in the habendum, is clear that a lesser estate is intended to be granted to such person and the fee is intended to go in remainder to a person named in the habendum— but not in the premises — such intention will be carried out. The meaning and extent of the rule in this State is further illustrated in the following cases: In Davidson v. Manson, 146 Mo. l. c. 612, the premises were, “G-ive, grant, bargain, sell and convey unto the said Charlotte B. Davidson and her heirs and assigns.” The habendum was, “To have and to hold the above granted and bargained premises, with the appurtenances thereof to the said Charlotte B. Davidson, her heirs and assigns, in fee simple, her natural life to her own proper use and behoof.” The warranty was, “That I will, during her natural life, warrant and defend the title thereof to the said Charlotte B. Davidson, her heirs and assigns.” It was held, per Williams, J., that Mrs. Davidson acquired only an estate for life, and that her heirs took the remainder in fee. It was also held that the term “assigns” did not en — 301 — large the life estate of Mrs. Davidson, following in this respect Bean v. Kenmuir, 86 Mo. l. c. 671. In Linville v. Greer, 165 Mo. l. c. 397, Burgess, J., said: “But if there be a doubt as to the intention of the parties, the habendum clause which performs the office of defining, qualifying or controlling the granting clause when not in conflict with it, is an important factor in arriving at such intent.” The rule that obtains in this State is likewise the law in other jurisdictions, even where the old rule has not been entirely superseded by the modern, common sense rule: Downing v. Birney (Mich.), 70 N. W. 1006; Barnett v. Barnett (Cal.), 37 Pac. 1049; Montgomery v. Sturdivant, 41 Cal. 290; Basket v. Sellars, 93 Ky. 2; Carson v. McCaslin, 60 Ind. 334. It follows that the deed in question granted to Mrs. Frances A. Clark an estate for life only, with a remainder in fee to the heirs of her body, the plaintiffs, and that the defendants acquired only Mrs. Clark’s life estate, and the plaintiffs are the owners of the remainder in fee. The circuit court so declared and its judgment to this effect is correct. The language of the judgment is criticised with respect to whether the judgment should declare the plaintiffs’ remainder to be vested or contingent. But as the defendants have no interest except as grantees of the life estate of Mrs. Clark, it is not material to them or at this time whether the remainder is a vested or a contingent interest. For the same reason it is immaterial now, whether Mrs. Clark is at such an age that the possibility of having further heirs of her body is extinct or not. Quoad these defendants the judgment of the circuit court is right and it is affirmed. The case of Utter et al. v. W. G. McLemore, No. 11232, involves the same questions as this case, and by stipulation of counsel was heard with this case, and it was stipulated that the same judgment should be entered in that case as in this. It is accordingly ordered — 302 — that the judgment of the circuit court in that case be also affirmed. All concur.