123 S.E. 849 | S.C. | 1924
August 7, 1924. The opinion of the Court was delivered by Action for the recovery of the possession of a tract of land containing 94 acres, a part of a tract containing 940 acres, which belonged at one time to Thomas R. Wilson and Mary F. Wilson, his wife. The plaintiff, and all of the defendants, except L.J. Poston and E.L. Baylor (a tenant of Poston), are heirs at law of said former owners. L.J. Poston is the grantee under a deed executed and delivered to him by Jessie M. Poston, his wife, formerly Jessie M. Wilson.
The issue of title between the parties depends upon the construction to be given to a deed by Thomas R. Wilson and Mary F. Wilson to Jessie M. Wilson, their daughter, dated July 13, 1911. The granting clause is, "Unto the said J.M. Wilson," without words of inheritance, *349 followed by this provision: "It is furthermore understood that if the said J.M. Wilson dies without lawful heirs, the above-named tract of land must return to our estate and be equally divided among our heirs." The habendum is, "Unto the said J.M. Wilson, her heirs and assigns forever." The warranty is general, "Unto the said J.M. Wilson, her heirs and assigns."
The plaintiffs contend that the deed should be construed as conveying to Jessie M. Wilson a fee simple defeasible, and that Jessie M. Wilson having died without children, under the terms of the deed the estate became vested in them as the heirs at law of the grantors; the tenants other than L.J. Poston and E.L. Baylor, his tenant, are in accord with the plaintiffs. The defendant L.J. Poston contends that the deed should be construed as conveying to Jessie M. Wilson a fee simple absolute and that he being in possession under a fee-simple deed from her, dated January 12, 1920, is entitled to the fee.
The case was first tried before his Honor, Judge Peurifoy, who filed a decree construing the deed as conveying a fee conditional to Jessie M. Wilson, and holding that as she died without issue, the land reverted to the heirs-at-law of the grantors. He accordingly rendered Judgment in favor of the plaintiffs and the defendants other than L.J. Poston and E.L. Baylor, for the recovery of the possession of the land. From that decree the defendants L.J. Poston appealed, and on April 22, 1922, this court handed down an opinion reversing the decree of Judge Peurifoy and remanding the case for the purpose of having the question determined whether the deed conveyed to Jessie M. Wilson a fee simple defeasible, or a fee simple absolute, a question not passed upon below.
The case then came on to be heard by his Honor, Judge Memminger, upon the same agreed statement as before. See
We do not think that there can be a doubt that the words "lawful heirs," contained in the limitation, mean immediate offspring, children, heirs of the body or issue, which under the Act of 1853 would be referred, in point of time, to the death of Jessie M. Wilson. In her situation, so far as family relations were concerned, it was a practical impossibility for Jessie M. Wilson to have died without a single legal heir, in the technical sense of the word. At the time of the execution of the deed she had a father and mother, eight brothers and sisters, uncles, aunts, nieces, nephews, and cousins without number. The parties who were to take upon the happening of the breach of the condition were the heirs of her father and mother; these heirs in large measure would also have been her heirs. To construe the words in their technical sense would place the grantors in the absurd attitude of creating a limitation over in favor of their heirs, upon the impossible theory that the persons answering that description would not be at the same time, necessarily, the heirs of their daughter Jessie, the grantee; in which event, of course, Jessie would not have died without lawful heirs, and the limitation over, dependent upon that contingency, could not go into effect. In fact, the counsel for the appellant concedes that construction of the *351
words. Du Bose v. Flemming,
Construing the words "lawful heirs," then, as children," we come to this question:
"In a deed, where the granting clause contains no words of inheritance, but the habendum is to the grantee and his heirs, what is the effect of a limitation in the granting clause that if the grantee should die without children the estate shall go over?"
We have no doubt that it was the intention of the grantors that Jessie M. Wilson should have the fee-simple title to the land, but that, if she died without leaving children, her fee-simple title should terminate and the land should be equally divided among the heirs of the grantors. We concede, however, that this intention, so plainly indicated, cannot be allowed effect, if in so doing the established rules of construction be contravened.
It will be particularly noticed that in the granting clause there are no words of inheritance attached to the grantee's name. Every case, without exception, cited to destroy the conditional limitation contains a complete fee simple or fee conditional conveyance in the granting clause. Edwards v.Edwards, 2 Strob. Eq., 101, construed a deed "to W. T., their heirs and assigns." Allen v. Folger, 6 Rich., 54, "to A. and the heirs of his body." Ex parte Yown,
Where an incomplete or an indefinite estate is conveyed by the granting clause, as for instance where no words of inheritance accompany the grant, which by implication is construed to be a life estate, resort may be had to the habendum for the purpose of ascertaining the intention of the grantor, and thus an implied life estate may be enlarged into a fee simple. In McLeod v. Tarrant,
"Why is this allowed? Is it not because the intention of the grantor is thus made clear to vest an estate in fee rather than a life estate? Thus the cardinal principle governing the construction of deeds is made to appear, viz. that the intention of the grantor, if consistent with law, must govern."
In the case of Berry v. Billings,
"But where no estate is mentioned in the granting clause, then the habendum becomes efficient to declare the intention, and it will rebut any implication which would otherwise arise from the omission in this respect in the preceding clause."
In Chancellor v. Windham, 1 Rich., 161; 42 Am Dec., 411, it is said:
"Large and more sensible rules of construction require that the whole deed should be considered together, and effect be given to every part, if all can stand together consistently *353 with law; that an exposition favorable to the intention should be made, if not contrary to law; that the intention should be regarded as looking rather to the effect to be produced than the mode of producing it; that too minute a stress should not be laid on particular words, if the intention be clear — and that, if the deed cannot operate in the mode contemplated by the parties, it should be construed in such manner as to operate, if possible, in some other way."
In McCown v. King,
In Ingram v. Porter, 4 McCord, 198, it is decided:
"Where the habendum of a deed is so wholly inconsistent with and repugnant to the premises, so that they cannot *354 stand together, the habendum must be considered as void, and if the premises pass anything the grantee shall hold."
In Pitts v. Mangum, 2 Bailey, 588, it is said:
"The case of Ingram v. Porter, decides, that where the habendum of the deed is wholly inconsistent with the premises, it must be rejected; on the old and familiar principle, that the first part of a deed shall prevail over, and control, a subsequent clause inconsistent with it."
In Crawford v. Lumber Co.,
"The authorities are unanimous that where two clauses in a deed are incompatible or contradictory, so that one or the other must fall, the first will be sustained and the latter rejected" — citing many cases.
"Where there is a definite limitation in the words of the grant, and there is a conflict between them and the habendum, the latter must yield." 1 Dev. Deeds, § 214.
"The habendum, when irreconcilable with the granting clause, is to be rejected, and is to affect the grant only when it can be construed as consistent with the premises." 1 Dev. Deeds, § 220.
In Smith v. Smith,
In Hunter v. Patterson,
There does not appear to be a doubt that if the habendum had not contained words of inheritance, the conditional limitation would not have been at all inconsistent with the life estate by implication conveyed by the granting clause, and would stand. And if the habendum, with its words of inheritance, is given the effect of conveying the fee simple *355 absolute to the grantee, and of destroying the conditional limitation contained in the granting clause, the habendum is obliged to be inconsistent with and repugnant to the granting clause. The inconsistency of the habendum with the granting clause, however, is easily reconciled by giving it full effect in enlarging the implied life estate to a fee simple retaining the conditional limitation, and converting the fee simple absolute into a fee simple defeasible.
In Smith v. Clinkscales,
But it is contended that as there are no words of inheritance attached to the words "our heirs" in the limitation over after the death of Jessie M. Wilson without children, the rule declared in Tiffany applies, namely:
"If one who has an estate in fee simple, on creating a lesser estate in favor of another by conveyance, undertakes expressly to limit by the same instrument, an estate in fee simple in his own favor, such limitation is nugatory, as being merely a transfer to himself by himself, of what he already has. It is an attempt to give himself as a remainder what he has as a reversion." 1 Tiff. R.P., 470.
And the case of Wilson v. Telford,
We do not suppose that it ever was or could be doubted that if a grantor should convey to another a life estate, with remainder to himself, or to his heirs, the remainder being the equivalent of the reversion, would be void. But here the limitation over is to "our heirs," to be "equally divided" among them, necessitating a distribution per capita, different from the distribution, per stripes, which would result from the reversion. The conditional limitation over being valid, and there being no words of inheritance attached to "over heirs," it follows that the heirs would take a life estate per capita, and the descended fee, not disposed of, per stripes. This complication, however, should not affect the right of the heirs to the possession *357 of the property, but creates a difficulty which they must solve and in which the defendant Poston is not interested.
In the Wilson v. Telford Case,
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
MESSRS JUSTICE WATTS, FRASER and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.