Sharp v. Sharp, 148 Mich. 278

Sharp v. Sharp

148 Mich. 278 | Mich. | 1907

Grant, J.

(after stating the facts). In the construction of deeds, the intention of the parties must prevail, unless it is contrary to law. 2 Devlin on Deeds (2d Ed.), § 836; Erickson v. Iron Co., 50 Mich. 604.

The land deeded by Thomas Sharp was conveyed for no other purpose or intention than to make a burial place for the dead. If, as contended by the complainant, Mr. *280Sharp excepted this lot, two rods square, from the grant for other purposes than for the burial of the dead, the exception would be repugnant to the grant, and void. The use of this lot as a potato or cabbage patch would be repugnant to the purpose for which the land was deeded, and as well that for which Mr. Sharp retained it. The very language of the deed shows that he retained it as a lot “ in said'burying ground that they have used.” The right, therefore, which the grantor obtained by this deed, was none other or greater than that which he would have obtained by the omission of this language from the deed and the purchase of the same lot for burial purposes. The only right retained was the right of burial in the lot-Neither Mr. Sharp in his lifetime could have conveyed this lot, nor can his heirs now convey it, for any other purpose. It was not a part of his estate, subject to partition. The graves of the dead cannot be partitioned among the heirs of one who owns a burial lot in a cemetery.

The question of the right of burial by his heirs is not before us, and upon that we pass no opinion.

It follows that the decree of the court is erroneous.

It is therefore reversed, and the bill dismissed, with the costs of both courts.

MoAlvay, C. J., and Carpenter, Blair, and Ostrander, JJ., concurred.