92 W. Va. 317 | W. Va. | 1922
The writ of error in this ease goes to a judgment for the plaintiff in an action of ejectment instituted for recovery of the possessison of a small-farm containing 52.95 acres, composed of two tracts, one containing 46 acrefc and the other 6.95 acres. The property in question is the ancestral home of the plaintiff, and, strange as it may seem, the defendants are her mother, two brothers and a sister. The question of title turns upon the construction of a certain deed.
The formal parties to that deed, which bears date August 13, 1892, were Solomon Braham and his wife, grandparents of the plaintiff, parties of the first part, and Benjamin Braham, her father, party of the second part. Por and in consideration of services rendered to the grantors by the grantee and estimated to be worth $1,680.00, a covenant on the part of the latter to support the former, during their natural lives, and payment to one Amanda Allen, of the sum of $25.00, within nine months after the death of the parties
The defense is predicated upon the theory of a conveyance in fee simple to Benjamin Braham and descent thereof to the plaintiff 'and her brothers and sister, subject to the dower right of their mother. On the trial, the three deeds just mentioned were introduced by the plaintiff and the relation■ship of the parties shown by oral evidence. By an instruction given to the jury, the trial court interpreted the deed from Solomon Braham and his wife to Benjamin Braham, as having vested in Benjamin an estate for his life and in Edward Allen and Mary Braham, the remainder in fee. By ■another instruction, the jury were told that the deeds from Edward Allen and wife to James Burch and from Burch to the plaintiff were valid and effective to pass the interest of Edward Allen and wife in the land, to .the plaintiff. Exceptions were taken by the defendants to the giving of these two. instructions and another limiting the possible verdicts to
It is hardly necessary to observe that the construction of the Braham deed calls for consideration of only two things, the granting clause or premises and the habendum. As has been stated, the premises grant the land to Benjamin Bra-ham, but do not mention or define the estate he is to have in it. When a grant is made in that way, it is the office of the habendum, if there be one, to determine what estate.or interest is granted. Freudenberger Oil Co. v. Simmons, 75 W. Va. 337, 341; 2 Minors Institute, 629; 2 Lomax’s Dig. 215. If the premises fail to give the name of the grantee, this may be supplied by the habendum, because there is a grant in indefinite terms, which may be defined and made certain by the habendum. Freudenberger Oil Co. v. Simmons, cited. In' that case, it is said that the habendum can add nothing that is outside of, or bbyond, the terms used in the premises, and also that it cannot take away anything specifically conferred by the granting clause. If a deed grant land to - a certain person, without any indication of the estate he is to - take, and there is no habendum defining the estate, the law determines what it is, and, under our statute, to which reference has been made, it would be a fee simple. At the common law, such a deed would pass an estate for the life of the grantee. If, on the other hand, a deed not only grants the land or other property, but defines the estate therein by the premises or granting clause, any contradictory matter or terms found in the habendum, which would cut down or destroy that estate, in whole or in part, must be rejected. This distinction was stated by Abbott, Chief Justice in Goodtitle v. Gibbs, 5 B. & C. 709, 108 Eng. Reprint, 264, as follows: “If no estate be mentioned in the premises, the grantee will take nothing under that part of the deed, except by implication and presumption of law, but if an habendum follow, the intention of the parties as to the estate to be conveyed will be
In so far as tbe question of tbe validity and effectiveness of the babendum in this deed depends upon its consistency with tbe terms and legal effect of tbe premises, it must be sustained; for there is no necessary conflict or repugnance between them, in tbe legal sense of tbe terms. Definition in tbe babendum of what is not defined at all in the premises clearly involves no contradiction or repugnancy. That is exactly what we have here. By tbe premises, tbe land is clearly described and a grant thereof is made in general terms, but it does not specify tbe estate granted. To supply this omission in tbe granting clause, is-the peculiar office of tbe babendum, when an babendum is used. If none bad been used, tbe law would have defined tbe estate; but tbe law does not forbid its definition by tbe parties themselves, by tbe use of an babendum.
Inasmuch as tbe premises grant tbe land, to Benjamin Brabam, there would have been inconsistency between tbe premises and tbe babendum, if, in tbe latter, an' immediate estate bad been given to Edward Allen and Mary Brabam, instead of an estate in remainder; for, to give an immediate estate in one part of tbe deed to one person and in another part to three persons, clearly involves a direct contradiction and inconsistency. That is what is meant by tbe authorities which say a new grantee cannot be introduced by the baben-dum. Cox v. Douglass, 20 W. Va. 175; 2 Lomax’s Dig., 215. But there is no necessary conflict, if the babendum recognizes a life estate in tbe grantee mentioned in the premises and an
The conclusion arrived at in the construction of the deed involved in Riggin v. Love, enforces a principle of very wide • application in the interpretation of such instruments. The intention disclosed by the terms- or manifest purposes of a deed will be carried into effect, if it is possible to do so. Even though the intent cannot be effectuated in the moda or manner adopted by the parties for effectuation thereof, if it can be effectuated by the adoption of some other legal method of execution, the instrument will be allowed to operate and consummate the purposes of the parties, by the adoption of such other method. “If a deed cannot operate in the manner intended by the parties, the judges will endeavor to construe it in such a way that it shall operate in some other manner. * '* * m * * * * Upon this principle,
Upon these principals and conclusions, the judgment complained of will be affirmed.
Affirmed.