86 P. 135 | Kan. | 1906
The opinion of the court was delivered by
By the agreed statement of facts in this case it appears that in 1886 J. D. Vawter, with his wife, executed and delivered to his son, James E. Vawter, as a gift, a deed to certain land. It is said in the brief of the plaintiffs in error:
“If that deed conveys a life-estate to James E. Vawter, with remainder to his children,' then it will be conT ceded that the judgment of the trial court should be affirmed, but if the deed conveys title in fee simple to James E. Vawter, or conveys a life-estate to James E. Vawter with remainder to his heirs, then the judgment of the trial court must be reversed.”
In the brief of the defendant in error it is said that “this deed conveys either a life-estate or a fee-simple estate to James E. Vawter.”
“This indenture, made this 25th day of February, A. D. 1884, between J. D. Vawter, of Shawnee county, in the state of Kansas, of the first part, and James E. Vawter, during his natural life and after his death to his children, of Osage county, in the state of Kansas, of the second part, witnesseth:
“That said party of the first part, in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, does by these presents grant, bargain, sell and convey unto said party of the second part, his heirs and, all the following described real estate [describing the land] ; to have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever; and said J. D. Vawter, for himself, his heirs, executors or administrators, does hereby covenant, ■ promise and agree to and with said party of the second part, that at the delivery of these presents he is lawfully seized in his own right of an absolute and indefeasible estate of inheritance in fee simple of and in all and singular the above-granted and described premises, with the appurtenances; that the same are free, clear, discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and encumbrances of what nature or kind soever; and that he will warrant and forever defend the same unto said party of the second part, his heirs, against said party of the first part, his heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.”
Much controversy and contrariety of opinion have been exhibited in the books as to which should govern when one of the formal parts of a deed indicates one purpose of the grantor and another seemingly indicates a different purpose. This court has taken little or no part in the controversy. The rule here followed is well stated in the opinion in Palmer v. Blodgett, 60 Kan. 712, 57 Pac. 947, as follows:
“Modern theories, however, put deeds of real estate, for purposes of construction of their terms, in the list*292 with all other kinds of written contracts, and they endeavor to ascertain the intent of the parties executing them more from the language of the whole instrument than from the relative positions of the different parts or clauses.” (Page 714.)
A gift by deed, like a will; should be construed not only with reference to the language used in all its parts, but also especially with reference to the purpose of the . donor. The grantee or grantees in this case gave no consideration for the conveyance, and hence his or their intent is of little or no consequence. The donor had a right to do what he pleased with his own. {Williams v. McKinney, 34 Kan. 514, 9 Pac. 265.)
Looking at the deed in this view we have no doubt that the donor intended to convey a life-estate in the land in question to his son, James E. Vawter, with remainder to the children of James E. Vawter. ■
The judgment of the district court is affirmed.
