Lemon v. Graham , 131 Pa. 447 ( 1890 )

Opinion,

Mr. Justice Williams:

The title to the land in controversy was, in 1866, vested in James Ramsey, under whom both parties claim. In August of that year he made an assignment to his son Allen Ramsey, which was written on the back of the deed under which he acquired title, and delivered the paper on which the deed and the assignment were written to his son. The assignment was in these words:

“ 1, James Ramsey, do hereby assign and set over all my right, title, claim, interest, property, and demand whatsoever in and to the within deed unto Allen Ramsey, for value received. Witness- my hand and seal this 3d day of August, 1866. James Ramsey, [seal.] ”

“Attest: George Birh.”

Eighteen years later, in 1884, he conveyed the same land by deed to His daughter, Elizabeth Jane Graham. The father was in possession until his death. Allen Ramsey died before his father. This action was brought by the heirs at law of Allen. The defence, alleges that Allen took only a life-estate in the land, under the assignment made by his father to him,- and that on his death his title was extinguished, the fee having passed to Mrs. Graham under the deed made to her in 1884.,

Two questions were raised on the trial, and are now for determination. The first relates to the construction and legal effect of the assignment to Allen Ramsey. The other is over the right of the plaintiffs to show by George Bish, the scrivener by whom the assignment was drawn, and the subscribing witness to its execution, what the parties intended and agreed upon, what they asked him to put in wilting, and what he undertook to do for them. The learned judge of the court below held that the assignment conveyed onty a life-estate, and that evidence offered to show that a fee-simple was intended, and that the failure of the scrivener was by mistake of his own, was incompetent.

We do not doubt the general rule laid dowii by the learned judge, that the word “ heirs,” or its equivalent, is necessary in a deed in order to vest a fee-simple in the grantee. The rule is as old as the common law, and, as applicable to a formal deed, is well understood, and constantly applied. It is the invariable practice of professional conveyancers to describe the estate which it is intended to convey, by apt words. If it is a fee, the words of inheritance are introduced. If it is for the life of the grantee or of another, the character and duration of the estate' are' clearly set forth. Instruments having no apt words of description in them are not often met with, but when encountered are found, like the one before us, to be the work of men who have no professional training, and no knowledge of the principles of conveyancing. They are almost always intended to convey a fee-simple, and fail to do so because of the omission of the necessary technical words, the importance of which was unknown to the scrivener and to the parties. It is for this reason that the courts have relieved against the mistakes so made, when the proofs were sufficient to justify them in so doing, and have applied the general rule only to such cases as came clearly within its operation. Thus, the courts both in England and in this country have held that the word “ heirs ” was not necessary to pass an absolute estate in fee when there was a gift by will, but that the intent to vest a fee may be gathered from the will as a whole: Little’s App., 81 Pa. 190. So it has been held that an executory contract without words of inheritance will pass a fee-simple in equity: Ogden v. Brown, 33 Pa. 247. And it was held in the case last cited that the effect of an informal instrument transferring an interest in real estate depends, not on any particular words or phrases found in it, but on the intention of the parties as collected from the whole instrument. This case was followed in the recent case of Dreisbach v. Serfass, 126 Pa. 32.

But the effort to avoid the rigor of the rule where its application is not obligatory began long ago. Where technical words are supplied by reference to another instrument which contains them, the case was recognized as an exception as early as the days of Lord Coke ; and this exception was recognized by our own case of Lytle v. Lytle, 10 W. 259, and followed. The rule was plainly laid down in the last case cited that a fee-simple may be created in Pennsylvania, by deed without words of inheritance, by a reference to another instrument in which such words are found; and it was made clear that such was the rule in England at a very early date. The following examples are from Sheppard’s Touchstone. A conveyance was made by deed in which the grantor recited that “ B. hath enfeoffed him, (the grantor,) of white acre, to have and to hold to him and his heirs,.....and that as fully as B. has given white acre to him and his heirs he doth grant the same to C.” Here the word “ heirs ” is supplied in the grant to C. by the reference to the grant from B., and C. takes a fee-simple without the appearance of words of inheritance in the. grant to him. Another case is that of a grant of two acres of land “ to have- and to hold, the one acre to A. and his heirs, and the other acre to B. in forma predicta.” Shep. Touch., 101. Here B. takes a fee-simple by virtue of the reference to the grant to A., In which words of inheritance appear. The reference shows the intent of the grantor, and is held to import the words of inheritance into the grant to B.

In the light of these cases, let us look once more at the assignment before us. We find the assignor held a deed in fee-simple, in the usual form, made in 1862 by another son, John. On the back of this deed the assignment is written. It refers for a description of the estate granted to the terms of the deed upon which it is indorsed, and professes to transfer to the assignee all the right, title, interest, property, claim, and demand of the assignor “in and to the within deed.” What was the title of the assignor? That question can only be answered by an examination of the description of it in the body of the deed; but, whatever it was, the assignor undertakes to transfer it to his assignee. Not a part of it; not a life-estate carved out of it, but “ all the right, title, interest, property, claim, and demand ” of the assignor. Nothing was left. He transferred his whole estate, as vested in him by virtue of the deed, by the reference to its terms in the assignment. He said, in substance and in legal effect, “ as fully as the within deed clothes me with the title to the land described in it, so fully and completely do I transfer the same land to my son Allen. He is to take from me the title which I took from my grantor.” The technical words that are wanting in the assignment standing by itself, are thus supplied by the reference to “ the within deed ” for a description of the estate; and the fee-simple which the father took by the deed from John he transfers by his assignment to Allen. This is what was intended; and the scrivener wrought better than he knew in making his reference to “ the within deed ” for a description of the “ right, title, estate, interest, property, claim and demand ” of the assignor. If Allen bought a life-estate only, it is reasonable to suppose that he would have taken possession ; but he left his father in possession, and in the full enjoyment of its proceeds. If the father understood that he parted with a life-estate only, and retained the fee, he would naturally keep the deed under which he acquired title; but he indorsed his assignment upon that deed, and delivered it so indorsed, to Allen. We are satisfied, therefore, that the parties intended just what our construction of the assignment shows they did, viz., to convey the fee-simple “to Allen. In this view of the case, it becomes unnecessary to consider the other question at any length.

The judgment is reversed, and a venire facias de novo awarded.