156 Iowa 546 | Iowa | 1912
Three separate and distinct tracts of land are involved in this appeal: One consisting of thirteen and one-half acres of land, known as tract “A”; another, consisting of twelve and one-half acres, known as tract “B”; and a third, consisting of seven and one-half acres, known as tract “C.” Plaintiffs are the sole and only heirs of N. J. (or Jane) Eollins, now deceased, children by a former husband, Thos. Foster, who died December 29, 1870. N. J. Rollins died in September of the year 1910, and at the time of her death she was the wife of Caleb Eollins. No children' resulted from this last marriage, and after the commencement of this suit, which was brought against Caleb Eollins alone, he died, and by supplemental petition his heirs were brought into the case and made parties de
That this defendant and Jane Rollins as husband and wife adversely and peacably occupied' said land for more than twenty years, under color of title, as and for their homestead, and this defendant is now occupying said land as his homestead, and here and now and hereby elects to occupy said land, designated as tract C, as and for his homestead during the remainder of his life.
William Pleasant Rollins, who was made a. party de
I, Pleasant Eollins (unmarried), of the county of Madison. and state of Iowa, in consideration of the sum of one hundred dollars, in hand paid by Caleb Eollins and N. J. Eollins of Madison county, do hereby sell and convey unto the said Caleb Eollins and N. J. Eollins, the following described premises, situated in the county of Madison and state of Iowa, to wit: (Land designated as tract B described). And I hereby covenant with the said Caleb Eollins and N. J. Eollins that I hold said premises by good and perfect title; that I have good right and lawful authority to sell and convey the same; that they are free and clear of all liens and incumbrances whatsoever. And I covenant to warrant' and defend the said premises against the lawful claims of all persons whomsoever. This deed is to take effect at the death of Pleasant Eollins, and then Caleb Eollins and N. J. Eollins to have it their lifetime, and then it falls to William Pleasant Eollins.
This deed was signed in the presence of two witnesses and was acknowledged on the day it was made. William P. Eollins asked that his estate therein be quieted subject to the life estate in his father, Caleb.
It should be stated in this connection that Pleasant Eollins, the grantor in this deed, died many years ago. So the issues stood until the death of Caleb Eollins, when plaintiffs filed an amended and supplemental petition in which they set forth the death of Caleb Eollins and in lieu of the allegations of the original petition stated, with reference to tract B, that Caleb and N. J. Eollins were each the owner of an undivided one-half thereof down until the death of N. J. and that upon her death Caleb, instead of taking his distributive share of his deceased wife’s estate, elected to use and occupy the same for life as part
While it is true, of course, under these statutes, that words of inheritance are not necessary to create an estate of inheritance, and that it will be presumed every conveyance of real estate passes all the interest of the grantor therein unless a contrary interest can reasonably be inferred from the terms used, it is nevertheless true that the absence of words of inheritance may be full of significance, for the law does not say in express terms that every conveyance where these words are omitted shall create an estate in fee simple. As we view it, section 2914 of the Code has no application here; for the reason that, no matter what construction be put upon the deed, it is conceded that it passed all the grantor’s estate. The real question is: Who took under the deed, and what is the nature of the estate conveyed? Section 2913 is important; but, as already suggested, it does no more than to supply by implication or presumption the word heirs or other equivalent terms. Recognizing this rule, appellees contend that the last clause is in the nature of a habendum, and, as it is repugnant to the estate granted in the granting clause, it is void. Something is said in argument to the effect that it is a restraint on alienation; but this is not true as we view it. Whether it grants a life estate or a fee to Caleb and N. J. Rollins, there is nothing in the habendum which places any
Notwithstanding these somewhat arbitrary rules, common-law courts have almost universally given effect to both the granting clause and the habendum whenever it was possible to do so by fair construction. Thompson v. Carl, 51 Vt. 408; Rowland v. Rowland, 93 N. C. 220; Tyler v. Moore, 42 Pa. 374; Jamaica Pond v. Chandler, 9 Allen (Mass.) 159. Again, if the estate is briefly defined in the premises and more specifically in the habendum, the latter will control, for that is its office. Karchner v. Hoy, 151 Pa. 383 (25 Atl. 20); Doren v. Gillum, 136 Ind. 134 (35 N. E. 1101). The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions - in order to effectuate, if posi sible, the grantor’s intent. Beedy v. Finney, 118 Iowa, 276. That decision fully reviews the authorities, and we need only quote therefrom as follows:
Where, however the premises purport to convey without qualification or description, there can be nothing inconsistent with it in the habendum declaring the character or quality of the thing transferred, for that is not elsewhere defined. The repugnancy, to defeat the habendum, must be such that the intention of the parties either can not be ascertained from the whole instrument, or, if ascertained, can not be carried into effect. If, from the entire instrument and attending circumstances, it appears that the grantor intended to enlarge, restrict, or even repugn the conveyancing clause, the habendum will control. It is then to be regarded as an addendum or proviso to the granting clause, which will control it even to the extent of destroying its effect. In short, the modern rule requires the consideration of the deed as a whole, and not in separate and distinct parts, as was formerly done, and the finding ofrepugnancy avoided whenever all the provisions of the instrument may, without ignoring the accepted canons of construction, be given force and carried into effect. . . . The estate may be limited in the habendum, although not mentioned in the premises of a deed, and without the*555 use of the word ‘remainder.’ . ... And the latter part of a deed has been allowed to control, and render what seemed to be a fee, a life estate in the first taker. Prior v. Quackenbush, 29 Ind. 475.
While there is some conflict in the cases where a new grantee of a present estate is first introduced in the habendum, the universal holding seems to be in accord with the rule already stated where the habendum gives an estate in remainder to the person whose name is there for the first time introduced. Blair v. Osborne, 84 N. C. 417; Shep. Touch, 151; Berry v. Billings, 44 Me. 416 (69 Am. Dec. 107); 3 Wash. on Real Prop. (5th Ed.) page 468.
It follows from what we have said that William Pleasant Hollins took an estate in remainder under this
The finding of the trial court as to interests of the respective parties in tracts A and C seems to be correct. It follows that on the appeal of defendant Hollins the decree must be reversed, and on plaintiff’s appeal affirmed. Appellant will pay one-fourth and plaintiffs three-fourths of the costs of this appeal.
On Hollins’ appeal — Reversed. On plaintiffs’ appeal —Affirmed.