Dempsey v. Davis , 98 Ark. 570 ( 1911 )

Hart, J.,

(after stating the facts). A deed must be construed according to the intention of the parties, as manifested by the language of the whole instrument; and it is our duty to give all parts of the deed such construction, if possible, as that they will stand together; but where there is a repugnancy between the granting and habendum clauses, the former will control the latter. Whetstone v. Hunt, 78 Ark. 231.

Bearing in mind these fundamental rules of construction, it is clear that the words “children, the natural offspring of her body,” are synonymous with “bodily heirs” or “heirs of her body,” and exclude the idea that they are synonymous with the general word, “heirs.” When so construed, the estate granted is controlled by the decision in the following cases: Watson v. Wolff-Goldman Realty Co., 95 Ark. 18; Wilmans v. Robinson, 67 Ark. 517; Horsley v. Hilburn, 44 Ark. 458. That is to say, according to the rule announced in those cases, the effect of the granting clause was to create an estate tail, which under our statute gave a life estate to Selestia Ann Jinett Dempsey and the remainder in fee simple to the person or persons to whom the estate tail would first pass according to the common law.

The persons to whom the estate tail would first pass, according to the course of the common law, under the granting clause of the deed are the heirs of the body of the life tenant. If there are none such, the estate will by operation of law revert to the grantor. Corbin v. Healy, 20 Pick. (Mass.) 514; Fales v. Currier, 55 N. H. 392.

It is contended by counsel for defendants that the use of the words, “to hers and their own proper use, benefit and behoof forever in fee simple,” enlarged the estate to. a fee simple in Selestia Ann Jinett Dempsey.

Mr. Washburn says “that the test tó be applied to an habendum in a deed is, whether -it can be construed so as to stand with the premises, or is so repugnant in its operation as to be irreconcilable with the latter. In the one case it limits and explains the grant; in the other it is rejected as of no effect.” 3 Washburn on Real Property (5 ed.), p. 469.

In the application of this rule in the case of Corbin v. Healy, supra, the court held that where an estate tail is given the fact that the habendum of the deed creating it is to the grantee and his heirs will not»enlarge the estate to a fee simple; nor will the entail be destroyed by a warranty to the grantee “and his heirs as aforesaid.” There the habendum clause was to have the same, and the court held it to mean the limited estate in the land before granted which was an estate tail, otherwise it would have been repugnant to the granting clause, instead of explanatory of it.

As we have already seen, by the common law, Selestia Ann Jinett Dempsey became seized of an estate tail under the granting clause of the deed in question, which by our statute' was converted into an estate for life.

Now, at common law, the words “heirs” was necessary to convey a fee simple by deed, and in the case of Hardage v. Stroope, 58 Ark. at p. 313, the court said: “An express direction that the grantee should have the fee simple in the land would not have supplied the place of the word ‘heirs.’ ” Hence, by the rules of the common law, the habendum clause in the present deed does not enlarge the granting clause, but when used to explain it refers to the limited estate granted, and means that the heirs of the body of the life tenant take the remainder in fee simple. If the words used in the- granting clause are to be given their common-law meaning, so, too, the words in the other parts of the deed should be construed by the rules of the common law.

As stated in Corbin v. Healy, supra, the covenants only extend to the estate granted; and where there is no peculiar language to warrant such a construction, they do not enlarge the estate granted. See also Patterson v. Moore, 15 Ark. 222.

In this way all parts of the deed harmonize with each other; otherwise the granting and habendum clauses will conflict, and the latter must give way to the former. There are many decisions on the construction of deeds, but each is made with reference to the peculiar words used in the deed and the statutes, changing the rules of the common law. We believe the construction we have given the deed under consideration gives effect to every part of it, and is in harmony -with our other decisions which bear on- the principles decided. This case is not governed by Hardage v. Stroope, 58 Ark. 303. In that case the deed did not, as does the one under consideration, create an estate at common law, and therefore did not come within section 735 of Kirby’s Digest, which abolished fees tail and creates a life estate in the’ first taker with a remainder over in fee simple to the one to whom the estate tail would first pass .according to the course of the common law under the deed. Black v. Webb, 72 Ark. 336.

It follows that the court erred in sustaining the demurrer. The decree will he reversed, and the cause remanded for further proceedings not inconsistent with this opinion.