185 P. 982 | Cal. Ct. App. | 1919
[1] The title to the property involved in this action was conveyed to the defendants and appellants, Carl B. Soale and Wilson H. Soale, her husband, by the following deed:
"Witness their hands this second day of July, 1908.
"BERTHA E. HOOKWAY.
"WILLIAM R. HOOKWAY."
Plaintiff claims title to an undivided half of the premises under an execution sale of the interest of Wilson H. Soale, and brought this action for partition between himself and the defendant Carl B. Soale. This appeal is from the interlocutory judgment in plaintiff's favor.
The case turns on the construction of foregoing deed. Respondent claims that the conveyance created a joint tenancy in fee in the two grantees, and appellants contend that the effect of the deed was to create a joint life estate in the husband and wife, and a contingent remainder in fee to the survivor. Appellants' contention is based upon the theory that the words in the deed, italicized herein for the purposes of this case, are effective to prevent the severance of the joint tenancy by execution sale, or voluntary act of either of the parties to the title, and preserve the right of survivorship by creating an independent title in the survivor upon this life estate. Without discussing the question as to whether or not such an estate can be created under the limitations of the California Civil Code, we are satisfied that the language of the instrument, as relied upon by appellants, is not calculated and was not intended to limit or modify the apt language for the creation of a joint tenancy. We see nothing in the *117
words "with the right of survivorship," following the grant to "Carl B. Soale and Wilson H. Soale, her husband, as joint tenants," other than the expressed declaration of the implied incident of right of survivorship which characterizes a joint tenancy; and the italicized words in the habendum clause, "To have and to hold to the said grantees and to the survivor ofthem forever"; is in nowise inconsistent with the granting clause. Of course, no question of tenancy by entireties, as between husband and wife, is involved in this case under our statutes; and it is apparent under the granting clause, independent of the language in controversy, that it was the intention of the grantor to create a joint estate. [2] It is not disputed that the habendum clause, where such intent is made clear, can be resorted to to restrict, limit, or enlarge the estate indicated in the grant; but no such purpose is indicated here. In Barnett v. Barnett,
Without reviewing appellants' citations from the courts of other states, we find them all distinguishable from the case at issue here, and for the most part concerned with the construction of deeds in which the habendum clause is in irreconcilable conflict with the granting clause. Such is not the condition here. In Swan v. Walden,
The judgment is affirmed.
Finlayson, P. J., and Thomas, J., concurred. *118