Temple's Adm'r v. Wright

Harrison, J.,

delivered the opinion of the court.

The contention that this appeal should be dismissed because the trustee named in the deed of trust did not appeal is without merit. The appellant has the beneficial interest and is the party aggrieved by the decree complained of.

This appeal involves the construction of a deed dated December 14, 1881, from William H. Temple and wife to R. G. Wright and Edward Wright, which is, so far as necessary to be quoted, in these words: “That the said parties of the *340 first part for and in. consideration of the sum of two hundred' dollars to them in hand paid, and receipt whereof is hereby acknowledged, does hereby grant and sell to the said parties of the second'part the following described land (description), to have and to hold the same with general warranty to them and their heirs forever. The condition, of this deed is, that the said land is conveyed to E. G-. Wright for his special use, benefit, and profit, for and during his natural.life, and at his death to his son Edward Wright, to him1 and his heirs, or assigns, forever, with all the rights, privileges, and appurtenances thereto belonging or in anywise appertaining.”

Every deed is supposed to express the intention of th8 parties, and however unusual the form, may be, it is a primary and cardinal rule of construction, that effect must be given to •that intent whenever it is reasonably clear and free from doubt; and, in ascertaining the purpose and object of the parties, all parts of the deed must be taken and considered together, it being a rule of law too well settled to need citation of authority that, in the construction of any instrument, it must be construed as a whole.

In this view it would seem too plain to admit of dispute that the grantor in the deed in question intended to give E. Gr. Wright an estate for life, with remainder in fee to his son Edward Wright. It is, however, contended on behalf of the appellees, that the deed vests in the grantees joint estates in fee-simple; and that the portion of the deed which restricts this absolute conveyance of the fee-simple is repugnant to the granting part of the deed and therefore void. It is true that the grant is to both in fee, but it is connected immediately, without intervening terms, with language which shows that by the preceding grant the intention was that one should take only a life-estate, and the other the remainder in fee.

The technical common law rule, relied on by appellees, that the habendum clause of a deed yields to the granting clause where there is a repugnance between the estate granted and *341 that limited in the habendum, which is a consequence of the rule that deeds are construed most strongly against the grantor, is supported by abundant authority. It is, however, not to be invoked as a rule of construction except in those cases where the repugnance is such that the intention of the grantor cannot be determined with reasonable certainty from the whole instrument, for where that intention can be ascertained it is controlling if no legal obstacle lies in the way. Bassett v. Budlong, 77 Mich. 338 ; Fogarty v. Stack, 86 Tenn. 610 ; Bodine’s Adm'r v. Arthur, 91 Ky. 53 ; 34 Amer. St. R., note p. 164; and note to Berridge v. Glassey, 56 Amer. R. 324.

Chancellor Kent says that the habendum has degenerated into a mere useless form. 4 Kent Com. 468. Certainly with us it has practically fallen into disuse. In the case at bar the language relied on as an habendum cannot strictly be so considered. It is so connected with the premises that no judicial exposition severing the two clauses would be warranted. The latter clause beginning with the words “the condition of this deed,” &c., &c., shows clearly that it was intended to explain and qualify the preceding grant and thus become a part of it, not repugnant thereto, but explanatory of the grant.

It follows from the construction given to the deed under consideration that the decree complained of must be reversed, the injunction granted the appellees dissolved, and their bill dismissed.

Reversed.