130 P. 18 | Cal. | 1912
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *511 The defendants' appeal from the judgment was taken within sixty days after its rendition. The evidence is brought up in the record.
The plaintiff sued to quiet title to land. All the parties claim under a certain deed conveying the land, executed by William Gordon to John Gordon on June 3, 1872. The rule in Shelley's case was in force in this state until January 1, 1873, when it was abolished by section
It is not necessary to state the Gordon deed in full. It names William Gordon as grantor and John Gordon as grantee. The clauses which it is necessary to consider are the granting clause, a recital following the description of land, the habendum, the warranty, and the final clause following the attestation clause and explaining an interlineation and erasure. These are as follows:
Granting clause — "Does grant (etc.) unto the said party of the second part for and during the term of his natural life, and after his death then to descend to his heirs and assigns forever."
Recital — "The said land being conveyed to the said John Gordon for and during his natural life, for the final use, benefit and behoof of the children or other lawful heirs of his body, who may survive him."
Habendum — "To have and to hold . . . unto the said party of the second part, his heirs and assigns forever." *513
Warranty — To . . . "the said party of the second part, his heirs and assigns."
Final clause — "The words `for and during the term of his natural life, and after his death then to descend to,' interlined, and the words `and to,' erased, before the execution of these presents."
The final clause evidently refers to changes in the granting clause. It shows that the granting clause was first written thus: "unto the said party of the second part and to his heirs and assigns forever," making an unequivocal grant of the fee, and that when this was perceived and the repugnancy between it and the subsequent recital was noticed, the words "and to" were erased and the words referring to a life estate substituted therefor.
The fundamental reason for the rule in Shelley's case is that at common law it was considered that the words "and to his heirs," or "and to the heirs of his body," following a grant purporting to be of an estate for life, necessarily implied that the heirs mentioned should take by inheritance from the life tenant, and not directly by the deed, or directly from the grantor, and as this could not be so unless the life tenant had an estate of inheritance to pass at his death, it followed as a necessary conclusion that the deed must be understood to pass the fee to him as well as the life estate. In the phrases quoted, when the rule in Shelley's case applies, the word "heirs" is used in the broad sense, to signify the persons who take the estate by succession from generation to generation, forever, or as it is sometimes expressed, the whole inheritable blood of the life tenant, so that such life tenant, and not those who may be his heirs at his death, is the original stock of inheritance. It is a rule of positive law, and defeats even the declared contrary intent if, notwithstanding such declaration, it appears that the word "heirs" was used in this technical sense. (Norris v.Hensley,
The rule being founded upon these reasons, it is plain that if the deed contains words which modify or qualify these phrases to such an extent that a reasonable interpretation of the grant is that the grantor did not use the words to describe the whole line of succession from the life tenant, or his whole *514
inheritable blood, but, on the contrary, intended thereby to point out and designate the particular persons who should take the estate upon the death of the life tenant and to describe them as the persons then to take the estate direct from the grantor and by virtue of the grant, constituting of them a new root of inheritance, the implication as to the meaning of said phrases, upon which the rule is founded, would not exist and the rule would not govern the grant. This distinction is thoroughly established and it is recognized by all the authorities. (2 Washburn on Real Property, secs. 1614, 1615, 1616; 1 Jones on Real Property, sec. 617; 2 Devlin on Real Property, secs. 846a to 846e; 2 Pingree on Real Property, sec. 1019; note to Carpenter v.Van Olinder, 11 Am. St. Rep. 102; Norris v. Hensley,
The deed here involved contains modifying words of like effect to those above mentioned. The recital and the granting clause are parts of the same sentence and both must be considered in determining the true meaning. The grant as a whole must be understood as if it read: "to John, for and during his natural life, and after his death to the children or other lawful heirs of his body, who may survive him, for their final use, benefit and behoof." The deed was evidently drafted upon a form in common use for a conveyance in fee simple and the granting clause, as it first stood, granted such an estate. The interlineation described John's estate as for his life only, but it would have been ineffectual to escape the rule in Shelley's case, if not further qualified. The words added by the recital were manifestly inserted for the purpose of stating the intent more accurately than it was expressed in the first part of the sentence. The recital is therefore the significant part of the deed and it should control the interpretation as far as possible. Under the decisions above cited, it is clear that the word, "children," and the words, "who may survive him," qualifying the phrase, "lawful heirs of his body," and in connection with the declaration that the conveyance is for the "final use, benefit and behoof" of such survivors, were intended and used to show that the grant to John was for his life, only, and that the remainder was to go to the surviving children, or grandchildren, directly by the deed and not by inheritance, and that they, and not John, were to constitute the new stock or root of inheritance of the estate. The use of the expression "who may survive him" or similar terms, shows that the mind of the grantor was directed to the particular persons surviving at the death of John and not to his posterity generally. The words, "or other lawful heirs of his body" make it plain that grandchildren would take, in the event that any of John's children should die before his death and leave children surviving *516 They were evidently inserted for that purpose, and were not used in the technical sense first above stated.
It is further contended by the respondents that the granting clause itself is devoid of words constituting a grant of the remainder. If the words "descend to" were omitted therefrom, the intent to grant the remainder would be clear, although, under the authorities, in the absence of the recital, the operation of the rule in Shelley's case would override and defeat that intent.(Norris v. Hensley,
The habendum and warranty clause are of little importance. They are in the usual form and were evidently printed, if a printed form was used, or copied mechanically, if a form book was used. The incongruity between them and the granting clause, as changed, and as modified by the recital, was apparently not observed when the changes were made, and the failure to change them also may reasonably be attributed to inadvertence.
The conclusion is that the decision of the court below that the deed conveyed the fee to John was erroneous.
The judgment is reversed.
Sloss, J., and Angellotti, J., concurred.
*517Hearing in Bank denied.
Beatty, C.J., dissented from the order denying a rehearing of this cause and filed the following opinion on February 15, 1913:
Dissenting Opinion
I dissent from the order denying a rehearing of this cause, and from the judgment.
In this state the rule in Shelley's case governs the construction of all deeds of conveyance made prior to January 1, 1873. (Norris v. Hensley,