| Ill. App. Ct. | Nov 17, 1903
delivered the opinion of court.
The controlling question involved in this case is the construction of the phraseology employed in a warranty deed made by appellee Gage virtually to appellant, whereby the grantee took the title “ subject, however, to existing mortgages, liens, taxes and claims of any and every description which the party of the second part assumes and agrees to pay.”
There is mo question as to what is meant by “ mortgages, liens, taxes.” The language in controversy is “ claims of any and every description.” It is contended in behalf of appellant that these words include only claims against the property, that is, claims in the nature of liens; that every claim against the property is in effect a lien upon it. On the other hand it is contended in behalf of appellees that the purpose is not merely to make an exception to the general warranty, but also to create a charge upon'the land in favor of persons having claims of any kind growing out of the erection of the building.
Bead in what seems to us its obvious meaning and giving effect to all the language used, the purpose of the clause is to except from the warranty of the deed claims of any and every description existing against the land. These claims may include possessory rights, leasehold interests and the like, not perhaps in the ordinary sense properly described as liens. ■ It is claims against the land only, which the grantee assumes and agrees to pay. He clearly does not assume or agree to pay claims against the grantor which are not in law valid and existing charges upon the land itself. Such claims would not affect the title to the land, and it is the title whiph the grantor warrants. . The evident intention of the clause in controversy is merely to except from the warranty existing claims of any and every description which, like mortgages, liens and taxes, ejusclem generis, are or may become a valid charge against the land itself (see Misch v. Russell, 136 Ill. 22" date_filed="1891-01-22" court="Ill." case_name="Misch v. Russell">136 Ill. 22, 28); in other words, which may be legally enforced against it, and from which but for the exception, the grantor might be liable to protect the grantee’s title. In Beardstown v. Virginia, 76 Ill. 34" date_filed="1875-01-15" court="Ill." case_name="City of Beardstown v. City of Virginia">76 Ill. 34, 40, it is said : “ It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation.” It is the meaning upon the face of the instrument which courts must say was the intention of the parties thereto. The question in the construction of written instruments is, not what was the intention of the parties, but what is the meaning expressed by the words they have used. The intention of the parties is to be ascertained as expressed by the language used and not the intention which may have existed in their minds, but is not expressed by their language.
It is only where the language is obscure or doubtful that resort may be had to oral evidence of surrounding circumstances to ascertain the intention of the parties to the deed. But this can not be had for the purpose of contradicting or varying the language actually employed. Fowler v. Black, 136 Ill. 363" date_filed="1891-01-22" court="Ill." case_name="Fowler v. Black">136 Ill. 363, 372.
It is urged by appellees’ counsel that the words'" claims of any and every description ” created a lien by fcontract, referring to Sidwell v. Wheaton, 114 Ill. 267" date_filed="1885-06-13" court="Ill." case_name="Sidwell v. Wheaton">114 Ill. 267. In that case it was held that an assumption by the grantee of payment of two certain notes, created a.n express lien by contract on the land conveyed. But in the case at bar such is not the case. If the language employed had been, subject to existing mortgages, liens, taxes and claims in favor of John M. L. Sexton for a specific sum, and in favor of each of appellees for other definite sums, a lien by express contract might have been created. A charge in the nature of a lien on real property may be created by an express agreement (Pinch v. Anthony 8 Allen (Mass.), 536), but the clause in controversy contains none.
The claims of the appellees which were allowed by the Circuit Court, not being valid and existing charges against the land when the deed in question was executed and delivered, were not included in the reservation made in that instrument, and can not be enforced in this proceeding. The decree in that respect was erroneous. Whether any of these parties are in a situation to establish liens under the statute we are not called upon to consider in this case.
The decree of the Circuit Court must be reversed.