93 Ky. 2 | Ky. Ct. App. | 1892
delivered the opinion oe the court.
A. H. B. Early executed mortgages to the appellees on the tract of land in controversy. The fee-simple title of the land was sold hy the Commissioner of the Henderson Circuit Court pursuant to a judgment of that court foreclosing said mortgages. The appellant purchased said land at the decretal sale. He filed exceptions to the report of sale, disclosing the fact that the mortgagor, A. H. B. Early, owned only a life estate in said land, remainder to any children that she might have.
The granting clause in the deed under which A. H. B. Early held said land, is : “ Eor and in consideration of natural love and affection the said party of the first part (the father) has for his daughter, the said A. H. B. Early, and his son, T. L. Early, parties of the second part, the party of the first part has this day sold, and by these presents doth grant, bargain, sell and convey to the parties of the second part, the following described land,” etc. The habendum is: “ To have and to hold to them, my said daughter and son, and their children forever,” etc.
It is contended that the habendum, limiting the estate to the children of the vendees, is repugnant to the granting clause, which conveys to the grantees a fee-simple title; and such repugnancy renders the limitation in the habendum void; and the fee-simple estate granted by the granting clause is unaffected by the habendum.
We certainly see no conflict between the case at bar and the case of Ratliffe v. Marrs, 87 Ky., 28. But if there be a conflict in the principles announced, when it is remembered that the Ratliffe case was decided on a state of fact exisiting in 1848, and by the law then in
It is contended that the grantor used the word “ children ” in the sense of- “ heirs,” consequently the grantees took a fee-simple estate. But there is nothing in the deed indicating that the grantor used the word “ children ” in the sense of heirs. The word was evidently used in its popular sense, and as indicating the desire of the grantor (really donor) to provide for his two children and their children (his grandchildren), should they have any children. Hence, he used an appropriate word to express that intention. The word children has its meaning, as well as the word heirs, which is a word of purchase which should control the granting clause where it appears to be so intended, even though used in the habendum. Here the children are not mentioned in the granting clause, but only in the habendum, and the rule is well settled in such cases that the grantee takes a life .estate only, and the children take a remainder interest. (See the Bodine case, supra, and the case there cited.)
A. H. B. Early only took a life estate.
The judgment is reversed with directions for further proceedings consistent with this opinion.