20 Haw. 57 | Haw. | 1910
Lead Opinion
OPINION OF THE COURT BY
The following are the agreed facts: Inly 29, 1907, William Kalaehao conveyed to his daughter Mary Nanea Simerson the land situate on Nuuanu street in ITonolulu, described in R. P. 3589, by deed of conveyance executed and acknowledged by himself and his wife, of which the following is a translation:
“Know all men by these presents that I, William Kalaehao, of Kapalamá, Honolulu, Island of Oahu, Territory of Hawaii, for the sum of One Dollar received in my hands from Mary Nanea Simerson, of the same place, and for my affection for her, by this I acknowledge the receipt of said Dollar, therefore I do make and by this give, sell and convey absolutely unto Mary Nanea Simerson aforesaid., and her heirs forever that certain piece of land situate on Nuuanu street, Honolulu aforesaid, and being the piece of land described in Royal Patent 3589, L. O. A. 2937, and conveyed to me by deed dated December 27, 1899, and by deed dated May 27, 1905, and recorded in the Registry Office in Book 203, page 278, and in Book 272, page 106.
“This conveyance is' under the conditions mentioned below, viz.:
“One. That Mary Nanea Simerson aforesaid cannot sell this land nor mortgage it;
“Two. She is to pay the mortgage existing upon the said land, and all expenses pertaining to the release of said mortgage.
“To Have and To Hold the said piece of land, with all rights and benefits thereon, to Mary Nanea Simerson aforesaid immediately 'after our death;
“And- after her death, the said land is to descend to her child now being, William Kukailani Simerson, and other children which she may have hereafter, and to their heirs and assigns forever.
“And I, Kealoha Kalaehao, the wife of William Kalaebao aforesaid, for the sum of One 'Dollar paid by Mary Nanea Simerson, by this document release and relinquish forever all my dower in the within piece or parcel of laird, aforesaid to Mary Nanea Simerson aforesaid for her heirs and assigns forever.
“In Witness Whereof we have hereunto set our hands and seals this 29th day of July, A. D. 1907.”
The grantor and his wife have since died. The grantee has not paid the mortgage and has no other child than William, named in the conveyance, whose guardian joins the submission. The questions submitted are (1) Did the grantee take under the deed an absolute fee simple subject to the mortgage and life estate reserved to the grantor and his wife, and (2) is the fee mow in the grantee’s son William subject to a life estate only in the mother, the grantee, as well as to the terms of the mortgage and rights of after born children.
The plaintiff claims that the fee is granted to her by the words of conveyance and description of the persons taking the
The defendant claims that the grantee has only a life estate with remainder in fee to the grandchild, subject to rights of after born children; that this is the clear intention of the deed, taken as a whole, and is consistent with the common law rule invoked by the plaintiff if it is law here, but that if the rule would otherwise require, then that it is not in force in Hawaii, since the court looks at the whole instrument to find its intention and gives effect to the intention when found.
There is an inconsistency which the law cannot recognize between ownership of land in fee simple and inability of the owner to sell, mortgage, lease or devise the land at will, hence restraints upon its alienation, if attempted to be made in conveying a fee, are declared to be void. This is not only on the ground of public policy that land titles shall -be marketable but from the impossibility of granting to the same person at the same time two entirely distinct estates, for they can neither be created, nor held by him. If one holds an estate for years or for his life and also the fee the former estates merge in the fee. As for the public policy, it is impossible to say whether the. grantee’s child will survive her or that other children will be born and survive her, and, if they do not, to say who would be the heirs. This shows the difficulty of making a title out of a life estate with remainder over if it were for the interest of the mother and child to sell or mortgage this land.
The plaintiff inferentially has merely a life estate if the prohibition against selling or mortgaging can be reconciled with the previous words, which iii the absence of the prohibition
The words of grant give the grantee a fee which by the reservation of the rights, privileges and yearly receipts to the grantor and his wife takes effect upon their death. The sale of the land thus granted in fee cannot be restrained by the subsequent condition, nor is the fee reduced to a life estate because of the condition against a sale or mortgage. The habendum, if regarded as defining a life estate only, cannot defeat the estate previously granted. New York Indians v. U. S., 170 U. S. 1, 20.
This result follows from tire rule that effective conveyancing words of grant are not defeated by irreconcilable conditions afterwards expressed or by limitations in the habendum, 'and from the law that restraints upon alienation are invalid. While “courts should always seek for the actual intent of the parties and give effect to that intent when found, whatever' the form of the instrument” (Maker v. Lazell, 83 Me. 562), this proposition “is hedged about by some positive rules of law which the parties must heed, if they would effectuate their intent, or avoid consequences they did not intend. Muniments of title especially are guarded by positive rules of law to secure their certainty, precision and permanency. If, in the effort to ascertain the real intent of parties, one of these rules is encountered it must control, for no positive rule of law can be lawfully violated in the search for intent. * * * There is one rule pertaining to the construction of deeds, as ancient, general and rigorous as an}7 other. Tt is the rule that a grantor cannot
Another case cited by the defendant is Bodine’s Administrators v. Arthur, 91 Ky. 53, holding that if the granting clause and the habendum are repugnant and “it appears from the whole conveyance and attendant circumstances that the grantor intended the habendum to enlarge, restrict and repugn the conveyance clause, the habendum must control,” and is “to be considered as an addendum or proviso to the conveyancing clause which by a well settled rule of construction must control the conveyancing clause or premises, even to the extent of destroying the effect of the same.” There were no words conveying the 'fee other than may be implied in “granted, bargained and sold.” Beecher v. Hicks, 75 Tenn. 207, was a conveyance to the grantee, habendum unto her for her sole and separate use and to her children. The court said, “At common law the language of this deed would not have passed the fee for want of words of inheritance,” and “if the habemhim was repugnant to the premises either in the quantity of the thing conveyed, the estate or the grantee, it was void,” but that the habendum might determine the estate granted “if the estate given was not immediate but by way of remainder,” and held that the deed created a life estate, remainder to children in fee.
In Horn v. Broyles (Tenn.), 62 S. W. 297, a deed to the grantor’s two sons declaring his intention that if either should die without issue the survivor should have the land, it was held that the latter clause did not restrict the meaning of the first and therefore did not pass the title to the survivor, the other son having died leaving issue. The court, while recognizing the general common law of conditions repugnant to a grant, approved Beecher v. Hicks, supra, and Fogarty v. Stack, 86
>■ This case seems to overrule Bassett v. Budlong. 77 Mich: 338, a case much relied upon by the defendant, in which a conveyance to the grantor’s wife “her heirs and assigns forever” was held to be controlled by an habendum providing that upon her dying before her husband the premises shotdd revert to him.
In Prior v. Quackenbush, 29 Ind. 415, there was a conveyance which would have passed a fee simple to the grantee but for a clause at the end that it was upon the express condition that at the grantee’s death the land should forever be in B and C as the only heirs contemplated or included in the deed. It
In Barnett v. Barnett, 104 Cal. 298, a conveyance to the grantee’s “heirs and assigns forever” habendum for his natural life and to the issue and heirs of his boc]y Avas held to give a life estate only, the court saying that at common law this Avould be an, estate in fee tail and if the deed had been executed prior to the adoption of the civil code would have been so construed. Flagg v. Eames, 40 Vt. 13, was a conveyance to the grantee “and her heirs and assigns forever” habendum to the grantee and
It is evident that the common law rule is generally recognized that “In the case of a clear repugnancy between the premises and the habendum, the premises will prevail to the extent that
The Hawaiian deed, of which a copy has been filed.by request of court, shows that the English version appears to have been adapted to forms in English deeds. For instance, -it has no formal habendum, but in place of it, immediately after the clauses marked 1 and 2 requiring that the grantee shall not sell or-mortgage the land and shall pay the mortgage on it, appear the words which literally may be translated, “The land is gone (lilo), all the rights and the benefits upon it to said Mary Nanea Simerson immediately after our dying,” and next following, “and upon her dying the land will (or shall) descend (ili, usually meaning go -as an inheritance and translated by the parties as “descend”) upon her child which she now has, W. K. S., and other children which she may have hereafter and to their heirs and assigns forever.” This is not a remainder but an expression of the grantor’s wish or intention that the inheritance which he had given to his daughter should descend from her to his grandchildren. There is no Hawaiian word which is the exact equivalent of “condition,” the word “kumu,” translated “conditions,” used in the version, meaning “grounds” or “considerations.” Moreover, the Hawaiian language does not distinguish between the imperative mood and the future tense. The deed then would readily mean to the Hawaiian mind that the grantor gives the land to his daughter absolutely and to her heirs and assigns forever, considering that.she will (or shall) not sell or mortgage it and will pay off its mortgage and that at
Dissenting Opinion
DISSENTING OPINION OP
It is clear to my mind that the actual .intent of the grantors, inartificially expressed, was in effect (1) to retain a life tenancy for the term of the life of the survivor of them, (2) to give Mary a life tenancy for the term of her life and (3) to give the remainder to Mary’s son William and to such other children, if any, as might be born to her after the date of the deed. The general rule seems to be undoubted that in deeds 'as well as in other instruments the intent of the parties, when ascertained, is to be given effect unless it is in conflict with some rule of law. It is true, as stated in Maker v. Lazell, 83 Me. 562, that muniments of title especially are guarded by positive rules of law to secure their certainty, precision and permanency. Is there any ■such rule which stands in the way of giving effect to the intent of these grantors above outlined ?
The rule invoked is that when in a deed the habendum is as to the quantity of the estate conveyed repugnant to the premises the former yields, this upon the theory, apparently, that what the grantor has given away in the premises he cannot in the habendum recáll, and also to secure certainty in the construction of deeds. The rule is equally clear, however, that the habendum may be given effect if the premises are (a) silent as to the quantum of the estate granted, or (b) ambiguous, contradictory or uncertain in that respect. The habendum may be used in such cases to explain or qualify the premises and to define or render certain the interest granted. See, for example, Flagg v. Eames, 40 Vt. 13, and Rines v. Mansfield, 96 Mo. 394. In the discussions in the books on this subject the term
The ordinary rule that a conveyance is not good as to a person named in the habendum who is not named in the premises
The first question should be answered in the negative and the second in the affirmative.