44 Cal. 253 | Cal. | 1872
Lead Opinion
The following well known rules for construing deeds have been too long and too firmly established to be now lightly departed from, viz: First—That doubtful clauses in the deed
There could be no serious controversy as to the estate or interest which was intended to be conveyed, if only the first descriptive clause had been inserted, in the deeds, to wit: “ All of the undivided half of the right, title, and interest of said parties of the first part of, in, and to that certain tract and parcel of land lying and being in the State of California and County of Santa Clara, known hy the ,name of
It has been suggested in argument that such a description includes only the joint estate or interest of the grantors, but this construction is hypercritical and is too narrow and technical. In a large majority of cases such a construction would defeat the real intention of the parties. If there be several adverse claimants to separate undivided interests in a tract of land, and if all the claimants unite in a joint deed to a stranger, conveying all their right, title, and interest in and to the lands, it would not be seriously contended, I apprehend, that nothing passed by the deed, because the grantors had no joint interest in the land. I have not the slightest doubt that if the first 'descriptive clause only had been inserted in these deeds it would prima facie.have included all the interest of the grantors, whether joint or several, and from whatever source derived. The only difficulty in construing the deeds, therefore, arises from the second descriptive clause, which describes the interest conveyed a^the same acquired “ by the parties of the first part as heirs of José Joaquin Bernal and his wife, Josefa Sanchez de Bernal, deceased.” There is not apparent on the face of the deeds any conflict or discrepancy between the two descriptions. On the contrary, the last description would appear to have been added as only explanatory of the first. By the first description the grantors undertook to convey all their interest, whether joint or several, in the rancho, and the last description was apparently added for the purpose of defining more clearly what that interest was. In its legal effect the language of the deeds is that the grantors convey to the grantees all their interest, whether joint or several, in the rancho, being the same interest which they acquired as heirs of Bernal and his wife. This will become apparent
It is not pretended that the plaintiff and his wife had any joint interest in the land, nor is it claimed by either side that the plaintiff had any interest which he acquired as an heir of Bernal and his wife, or either of them. The inquiry on this branch of the subject is, therefore, narrowed down to the question whether the wife acquired her interest' as an heir of Bernal and his wife. The word “heir ” is frequently used to denote a person to whom an estate of inheritance has descended from his immediate ancestor. . But it has also a wider signification, and Lord Coke defines an heir to be “ he to whom lands, tenements, or hereditaments, by the act of God and right of blood do descend of some estate of inheritance.” It was evidently in its broader and more liberal sense that the word heirs was used in the second descriptive clause of these deeds, at the date of which there had been one or more intermediate successions from Bernal, which fact was, doubtless, known to the parties, and when the deeds declare that the interest conveyed by the plaintiff and his wife was that which they acquired as heirs of Bernal and his Wife, there can be no doubt that the only meaning intended to be attached to this phrase was that the estate came to them, not by purchase, but by one or more successive descents from Bernal. The second descriptive clause was therefore true, in so far as it includes the assertion that the wife acquired her interest as an heir of Bernal. It is contended, however, that the deed does not assert that the wife acquired any_ separate interest as an heir of Bernal, but only that the two grantors acquired a joint interest as heirs of Bernal and his wife. As we have seen already, the first descriptive clause, though ostensibly conveying only the joint interest of the grantors, was, nevertheless, prima facie effectual to convey the several interests of each. This conclusion was 'reached only by treating the phrase “ all of the undivided
I am, therefore, of opinion that by legal intendment the second descriptive clause in the deed must be held to include the assertion that the title of the wife was acquired as an heir of Bernal, and it is shown by the findings that the assertion was true in the sense in which the word “heirs” was used in that clause. Assuming this position to be correct, and reading the second descriptive clause as if it had defined the interest conveyed as that which the wife acquired through her mother, by descent from Bernal, as the plaintiff claimed'it should be read, the defendant claims that it is repugnant, to the first clause, and should, therefore, be rejected. This point has already been adverted to; but in addition to what has been said, it may be observed that in determining the question of repugnancy both clauses must be read in the light of the surrounding facts, and of the law which was applicable to the transaction. Whilst the first clause standing alone and unexplained would be clearly sufficient to pass any interest of the husband and wife, whether joint or several, it would, nevertheless, have been an appropriate method, under our statute, of conveying the separate estate of the wife. Though the husband may not be required to unite in the deed as one of the formal grantors, he must, nevertheless, assent to it by uniting in its execution, and the usual practice is to unite him as a joint grantor with his wife. If the husband claimed no interest whatever in
Concurrence Opinion
We concur in the judgment, and in so much of the reasoning as holds that only the interest of the wife passed by the deed.
Mr. Chief Justice Wallace, being disqualified, did not sit in this case.