Doren v. GillumDoren v. Gillum
This wаs an action, begun in the Jay Circuit Court, by the appellant, Emery E. Doren, to enjoin the sale of certain real estate by the appellee, Stephen A. D. Gillum, sheriff of Jay county, on an execution issued on a judgment obtained by the appellee Adelma Lupton, against Robert E. Rees, Charles Lord, and William Hubbard.
Such proceedings were had that a restraining order was granted pending litigation.
Briefly stated, the amended complaint described the real estate and аlleged the appellant to be the owner in fee simple, and in the actual and full possession of the same. Also, that on the 3d day of February, 1891, the appellee Lupton ordered an execution issued on a judgment in his favor for fоur hundred and sixteen dollars, obtained in the Jay Circuit Court on the 9th day of January, 1885, which execution was issued and directed to the sheriff of Jay county/Indiana, who, under said execution, levied upon the real estate described, and threatenеd and was about to advertise for sale, and to sell, the same on execution, and would do so unless restrained by the order of the court; that William H. Hubbard was
To this complaint, each of the appellees filеd separate demurrers, which were submitted to the court and overruled, and exceptions duly reserved thereto, whereupon the appellee Gillum answered by general denial, and the appellee Lupton in two paragraphs, the first of which was a general denial. The second paragraph alleges the judgment against said Rees, Lord and Hubbard, the issuing of the execution thereon, and that said Hubbard was then and still is the owner of the real estate describеd, having acquired title thereto by deed executed on the 25th day of September, 1882, which deed is in the words and figures following, to wit:
“This indenture witnesseth that William H. Rush and Eliza J. Rush, of Jay county, in the State of Indiana, convey and warrant to Levi Hubbard and Margaret Hubbard, of Jay county, in the State of Indiana, for the sum of one thousand dollars, the following real estate, in Jay county, in the State of Indiana, to wit: 'The southwest quarter of the southwest quarter of section twenty-six (26), township twenty-three (23) north, of range twelvе (12) east, containing forty (40) acres, more or less,’ to have and to hold the same during their natural lives, and each of their natural lives, and then to descend to William H. Hubbard and the heirs of his body. In witness whereof, the said William H. Rush and Eliza*137 J. Rush., his wife, have hereuntо set their hands and seals, this 25th day of September, 1892.
“William H. Rush.
“Eliza J. Rush.”
(Here follows an allegation of acknowledgment and recordation.)
The answer further avers that on the 24th day of May, 1890, and after the death of the grantee Margaret Hubbard, the apрellant procured a quitclaim deed from Levi Hubbard, without having paid any consideration therefor, and with full knowledge of the title thereto of William H. Hubbard and of the judgment of said Lupton; that the appellant purchased the land at a sаle for taxes ■and holds a deed therefor from the auditor of Jay county, but that said deed is illegal and void, and conveys no title, because said land was sold without having first offered the life estate then thereon, and without having first made proрer effort to collect any taxes then due out of the personal property then owned by the said Levi Hubbard, and without having properly advertised or listed said land, and because the same was sold for more than was due on said tract, and for other irregularities and illegal acts mentioned, in the appraising, listing, advertising, and selling of said premises.
The appellant, Doren, moved the court to require the several causes of defense therein separatеd into paragraphs and numbered, which motion was overruled and an exception taken.
The first error assigned by appellant, upon which he seeks a reversal of this case, is in the overruling of this motion; and, in support of it, he urges duplicity in the pleading. No question is presented under this assignment of error, as no bill of. exceptions signed by the judge appears in the record.
The appellant then filed a demurrer to this second par
The court found for the appellees, entered a decree dissolving the restraining order theretofore entеred, and rendered judgment against appellant for costs. Appellant moved for a new trial, on four reasons assigned, which motion was overruled by the court and excepted to at the time. Thereupon appellant prayed an appeal to this court, which was granted.
The second assignment of error, that ‘‘The court erred in overruling plaintiff’s demurrer to the second paragraph of the separate answer of the defendant Adelma Lupton,” raises the principal question for consideration in this case, because it involves .the construction of the deed from Rush and wife to Levi and Margaret Hubbard.
It is urged by the appellant, that “By the premises of this deed, ‘convey and warrant,’ title' in fee simple is pаssed as effectually as by a grant at common law,” and that “the habendum totally contradicts and is repugnant to the estate granted in the premises,” and hence “that the premises govern and the habendum is void. ’ ’
In 5 Am. and Eng. Encyc. of Law, pp. 454 and 456, it is said: “The term premises is given to all that part of the deed which precedes the habendum clause. The habendum and tenendum clause is that which follows the words ‘to have and to hold.’ Originally, that is, under the feudal system, this clause defined the quantity of interest or estate which the grantee is to have in the property granted, and the tenure upon or under which it was to be held. Since the practical abolition of the various feudal tenures, the only object of the clause is to state thе character of the grantee’s estate. But although
It is claimed by the appellant, that the word “descend,” in the deed, is clearly a word of limitation and not of purchase, and taken either in its common or technical sense, implies an estate of inheritance to be taken by William H. Hubbard as heir, аnd that “if the first takers take only a life estate, then there was nothing to descend to William H. Hubbard as heir,” leaving the implication that a fee was given Levi and Margaret Hubbard, and that no remainder was intended to vest in William H. Hubbard, or, briefly stated, it is insisted thаt the word “descend” having been used, no remainder was created.
An investigation of the authorities does not enable us to agree with the appellant in his contention. It has been held that where, in a conveyance, the word “descend” was used, it meant the sameas “goto.” 2 Sharswood & Budd’s Leading Cases, etc., p. 273; Halstead v. Hall,
The premises do not always control the construction. Words importing a greater estate than one for life in the first taker, may, by force of the context, be so limited as to give the first taker a life estate only, with a remainder over. Reeder v. Spearman,
And the latter part of a deed has been allowed to control and render what seemed to be a fеe a life estate in the first taker. Prior v. Quackenbush,
The argument that if a remainder was created, it was a contingent one, does not find support in the authorities. Davidson v. Koehler,
All parts of a deed should be given due force and effect. “The premises of a deed are often expressed in general terms, admitting of various explanations in a subsequent part of the deed. Such explanations are usually found in the habendum.” Carson v. McCaslin,
Words deliberately put in a deed and inserted there for a purpose are not to be lightly considered or arbitrarily thrust aside. Fountain County Coal, etc., Co. v. Beckleheimer,
Nor do we think the case of Taney v. Fahnley,
The third cause assigned in appellant’s motion for a new trial, that “the decision is contrary to law,” involves the sаme questions already considered regarding the construction of the deed, and we will not repeat what we have heretofore said concerning it.
The fourth specification in appellant’s motion is that the court erred in еxcluding the following evidence offered by the plaintiff:
“1st. The record of the quitclaim deed from Levi Hubbard to the plaintiff, conveying the real estate in question and sought to be sold on execution.
“2d. The record of a tax deed by the auditоr of Jay county, conveying said premises to the plaintiff.
“3d. The receipts for taxes paid thereon, by the plaintiff, .subsequent to the sale for taxes.
“4th. The value of improvements made upon said tract, by plaintiff, since the executiоn of the tax deed by the auditor.”
It is the duty of the life-tenant to pay and keep down the general taxes assessed against the real estate of which he is in possession and enjoys the rents and profits, and if, through failure to perform his duty, the еstate in remainder is sold, destroyed, or wasted, he is required to make the loss good. If, through the failure of the tenant to pay the taxes, the estate is sold and conveyed to another, beyond the power of the remainder-man to *rеcover it, it is as to him destroyed, wasted, and the inheritance is gone, and the tenant should pay for the loss. Clark v. Middlesworth,
In 1 Sharswood & Budd’s Leading Cases, etc., p. 209, it is said: “The tenant for life must also pay the ordinary taxes upon the land held by him; and if he neglect or refuse to pay the taxes, and suffer the land to be sold, and buy it in, he will not be allowed to set up the tax against the remainder-man or reversioner, for that would be taking advantage of his own wrong. Patrick v. Sherwood, 4 Blatch. 112. In Ohio, a life-tenant suffering a sale of his land for taxеs, forfeits his life-estate, and will not be allowed to redeem the land.” Citing McMillan v. Robbins, 5 Ohio, 28.
But these questions were not involved in the issues. The whole question in this case turns upon the construction of the deed from "William H. Rush and wife to Margaret and Levi Hubbard, with remainder to Williаm H. Hubbard, heretofore given, and as the latter took, by virtue of that conveyance, a vested interest in the land, it became and is subject to the lien of the appellee Lupton’s judgment, and was properly levied upon by the sheriff.
There is no available error in the record, and the judgment of the court below is affirmed.