McCord v. Ransom , 185 Tenn. 677 ( 1948 )

In the premises or granting clause of this deed, the Grantor created a fee simple by conveyng to S.A.E. Binford "all the right, title and claim and interest I have," and in the habendum the Grantor undertook to cut down this fee simple to a life estate by the following language: "To the said S.A.E. Binford for and during her natural life and after her death, to her son, etc." Where, as here, there is an irreconcilable conflict between the fee simple estate created by the granting clause and the lesser estate conveyed in thehabendum, the common law rule (Beecher v. Hicks, 75 Tenn. 207, 211) was that the habendum was void and that the conveyance in the granting clause was effective to create an estate in fee simple in the Grantee. While declaring that in Tennessee the strictness of common law conveyancing has been abandoned, two of our reported cases have applied the rule stated above and given different reasons for so doing. In the case ofTeague v. Sowder, 121 Tenn. 132, 114 S.W. 484, there was found an irreconcilable conflict between the estate created by the granting clause and that created by the habendum. In the granting clause the conveyance was to certain parties, "Their heirs and assigns forever," and in the habendum this fee simple estate was cut down to a life estate by providing that the property should go to these parties "their lifetime and their to their heirs and assigns forever" (the italicized "their" is either a misprint or mistake (121 Tenn. at page 139, 114 S.W. at page 487) and the intention was to make the limitation "their lifetime and then to their heirs and assigns forever") The Court held that on account of the irreconcilable conflict between the premises and the habendum, and on account of the fact that by a consideration of the entire deed it was impossible to determine the Grantor's intention, that therefore, the old common law rule had to be applied, and effect given to the estate created in the granting clause and the habendum voided as undertaking to create a lesser estate. Beecher v. Hicks, 75 Tenn. at page 211, supra.

In the case of Pryor v. Richardson, 162 Tenn. 346, 347,37 S.W.2d 114, the pertinent part of the granting clause of the deed under consideration contained a conveyance of "all the right, title, claim and interest," and in the habendum an attempt was made to cut this down to a life estate with remainder to children. Judge McKINNEY, speaking for the Court, discussed at length the cases showing our departure from the old rules of the common law, but in disposing of the case, in spite of the doctrine of liberality, he voided the habendum and approved the fee simple created by the granting clause, holding that there the Grantor having conveyed all his "`right, title, claim and interest' . . . there was nothing left in the grantor," (162 Tenn. at page 349, 37 S.W.2d at page 114) and the Grantee of the granting clause took a few simple absolute. So the result reached was the same as in Teague v. Sowder, supra, but the reason given for reaching that result was different. And although both cases declared that Tennessee had departed from the old strictness of the common law, both these cases were decided on one of the most arbitrary of its rules.

In 1942, in Lockett v. Thomas, 179 Tenn. 240,165 S.W.2d 375, the Court had for construction a deed in which the pertinent part of the granting clause was that Grantors "have this day bargained and sold and do hereby grant and convey unto the party of the second part. . . ." Under Code sec. 7597 this language created a fee. In the habendum, however, this fee was cut down to a life estate in "the party of the second part," with remainder to his named daughter. It was insisted that the language of the granting clause created an estate in fee simple, and that the attempted limitation in the habendum was void. This Court rejected this argument, ignored the granting clause and enforced the conveyance in accordance with the estate created in the habendum.

It is impossible for me to see how the case of Pryor v.Richardson, supra, can be authority for that disposition, but it is used for that purpose. It seems to me that the decision inLockett v. Thomas, supra, uses the dicta and not the decisions in Pryor v. Richardson and Teague v. Sowder, as authority for deciding the case. However, the rule made inLockett v. Thomas, supra, which was followed in Archer v.Culbertson, 28 Tenn. App. 52, 185 S.W.2d 912, is the latest expression of this Court, and is, therefore determinative of this case.