Ratliffe v. Marrs, 87 Ky. 26

Ratliffe v. Marrs

87 Ky. 26 | Ky. Ct. App. | 1888

Lead Opinion

JUDGE BENNETT

delivered the opinion of the court.

The appellants instituted this action in the Pike Circuit Court against appellees, to recover the possession of a tract of land which they claimed the appellees wrongfully withheld from them.

The appellants are the heirs of Wm. Ratliffe, Jr., deceased. They base their claim to the land in controversy upon a deed made by Wm. Ratliffe, Sr., to Wm. Ratliffe, Jr., in 1848, which deed, they contend, conveyed to Wm. Ratliffe, Jr., a life estate only in said land, with remainder to them in fee-simple. On the trial of the case in the lower court, that court held that under said deed Wm. Ratliffe, Jr., took an absolute title to the land, and, therefore, gave the jury a peremptory instruction to find for the appel*28lees. The jury having returned their verdict in accordance with the instruction, and the court having overruled the appellants’ motion for a new trial, they have appealed to this court. If the construction put upon the deed by the lower court is correct, the case must be affirmed.

By the granting clause of the deed, the land, in consideration of five hundred dollars paid by Wm. Ratliffe, Jr,, was conveyed to him in fee-simple. No conditions, restrictions or limitations whatever are annexed to the conveyance in the granting clause. But the hdbendwn apparently limits the estate to a life estate' in the grantee, and then to his heirs generally.

In the premises of the deed there is no language used expressing an intention on the part of the grantor to limit the nature of the estate granted in the hdbendwn ; nor is there any language used in the habendum expressly limiting the nature of the estate granted in the granting clause.

It is a well-settled rule, that if there is “a clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former;” for the reason that a granting clause, or its equivalent, is indispensable to convey title to real estate, whereas the habendum is not indispensable for any purpose whatever.

Thus, if an estate be granted to A in fee-simple, and in the habendum to him for life, and thereafter to his heirs generally, this restrictive clause is inoperative, because it contradicts and defeats the grant, unless it can be gathered from the whole instrument that the grantor intended that the restrictive clause in the *29habendum should control the granting clause. There is nothing in the deed indicating that the grantor intended that the habendum should limit the estate granted to a life estate in the grantee. On the contrary, the deed, when considered as a whole, manifests an intention on the part of the grantor to convey, as is expressed in the granting clause, a fee-simple title to the lands; and the expression in the habendum apparently limiting the estate to a life estate in the grantee, was not so intended by the grantor; but he simply intended to emphasize the grantee’s right to use and enjoy the estate.

The judgment of the lower court is affirmed.

Rehearing

To a petition for rehearing,

Judge Bennett

delivered the following response of the court:

The case of Henderson, &c., v. Mack, 82 Ky., 379, is not in conflict, but in harmony with this case. Ih that case the habendum read as follows : “'To have and to hold the same, with all the appurtenances thereon to the second party, his heirs and assigns forever, -with covenant of general warranty during his natural life, and after his death to go to and belong absolutely to Belle Mack, she paying the unpaid purchase money as aforesaid.” This court held in that case that as the habendum set forth the fact that Belle Mack had paid the unpaid purchase money for the land, and that in consideration thereof the remainder interest was expressly conveyed to her, it was manifest that the grantor intended the habendum to control the granting clause.

*30In the case of Brown v. Ferrell, &c., 83 Ky., 417, a deed made since the General Statutes went into effect was construed according to the provision of section 10, article 1, chapter 63, of said statutes. The deed in this case was made in 1848, at which time there was. no statutory rule similar to that contained in said section and chapter. Therefore the deed under consideration must he construed without reference to said section and chapter. The construction placed upon it in the opinion we still adhere to.

The petition for a rehearing is overruled.