62 N.Y. St. Rep. 219 | The Superior Court of New York City | 1894
James Wood, in 1872, conveyed the premises in question to his son, William Gr. Wood, and to his heirs and. assigns, forever, by a warranty deed in the usual form, purporting in the premises or granting clause to convey the entire fee, but with an habendum clause reading as follows: “ To have and to hold the above granted, bargained, and described premises with the appurtenances, unto the said party of the second part, for and during the term of his natural life only, and at his decease then to go to his own lawful heirs, to and for their own proper use, benefit, and behoof, forever; but, in case of his death without lawful issue, then the said property conveyed shall revert back to said party of the first part, his heirs and assigns, forever.”
The plaintiff, the grantee, afterwards, in '1883, by a quitclaim deed, conveyed the same premises back to’ his father, the grantor. His father died after that, leaving a will by which he devised all his real estate to the plaintiff and Elizabeth Wood, the plaintiff’s mother, to be equally divided between them; and then Elizabeth Wood conveyed to the plaintiff all her interest in the property in question, and has since died. The plaintiff has a wife; but has never had any children. Assuming to be the owner of the land in fee simple, he made an agreement with the defendant to sell it to him; and the defendant now refuses to take title, on the ground that, as he claims, the plaintiff has only a life estate in the premises, and that, in case of his death, leaving a child or children, the title would vest in them, or that there is now a vested remainder in the heirs at law of the plaintiff. In this he is mistaken. It is clear from the language of the habendum clause,- particularly taken in connection with the premises or granting clause, that by the words “his own lawful heirs” the grantor meant children of the grantee, the grantee’s own lawful children. In no other way can the different parts of the habendum be reconciled or made consistent. He clearly desired and intended to say that his son should have the land during his life, and,then at his death that it should go to the son’s children, if he had any, but, if he had none, then that it should come back to himself (the grantor); and he evidently supposed that the words he used were appropriate words to accomplish that purpose. It is no uncommon thing -for such blunde/s to be made, nor for courts to construe the word “heir’’ to mean “ child,” and to so read a deed or will. Scott v. Guernsey,
Ordinarily, if there is an irreconcilable inconsistency between the' premises or granting clause in a deed and the habendum (which is not essential to the validity of a deed) the habendum must yield. Greenl. Cruise, tit. 32, p. 273, §§ 75, 76; 2 Washb. Real Prop. (2d Ed.) 691 (644), § 63; Mott v. Richtmyer, 57 N. Y. 49, 63. Such appears to be this case. By the premises or granting clause in the deed, it is a conveyance in fee simple to the grantee, his heirs and assigns, forever. If, by the premises or granting clause, the conveyance had been to the grantee and his heirs, and in the habendum it had been limited to the grantee for life, and at his death to the heirs of his body, as it is, it would have been what, prior to the abolition of entails, was an estate tail. The habendum, in that case, would but have described the particular heirs before mentioned in the granting clause; and the premises and the habendum might thus be reconciled, and the deed held good as a conveyance to the first taker for life, and of the remainder to the designated heirs. Mott v. Richtmyer, 57 N. Y. 63; Tyler v. Moore, 42 Pa. St. 386. But that could be so, under our statutes, only in case the grantee had such heir of his body at the time of the delivery of the deed. It was different under the common law before the abolition of entails, when the grantee or first taker had or might have a fee called a determinable fee.
The difficulty in this case lies i« the fact that the grantee had no child or heirs of his body at the time of the delivery of the deed, in whom the fee could vest;, and, as the premises or granting clause cannot be entirely disregarded, the only way to give effect to the deed is to hold the habendum clause void. It is then a conveyance of the entire fee to this plaintiff, the grantee, who ■got thereby a complete title, and who, by a conveyance to his father, .and by the devise and subsequent conveyance to him before mentioned, became reinvested with the title, and when -the contact with the defendant was made he had a good title in fee simple. That being the case, the defendant has no legal excuse for refusing to take title. If these views are correct, there is no occasion for considering the other questions.
The conclusions are that by the words in the habendum, “his own lawful heirs,” the grantor meant “ the grantee’s own lawful children,’) and that, taken in connection with the rest of the habendum, they will bear no other construction, and must be so read; also, that as there was no person in being at- the time of the delivery of the deed, answering to the description of “ his lawful issue,” who would have been entitled to immediate possession in case the grantee had then died, the limitation over to the grantor’s lawful issue is void; that the habendum is repugnant to and irreconcilably inconsistant with the premises or grant of the fee to the grantee, and that by the premises or granting clause in the deed the conveyance to the 'plaintiff was of the entire fee, and consequently that the plaintiff is entitled to judgment on the demurrer.