Watters v. Bredin , 70 Pa. 235 ( 1872 )

The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

The intention of the grantor in this case seems to us to he quite plain upon the face of his deed to Nancy Lasher, now Bredin. Animus ad se omne ducet. The intention is what the law applies itself to in deeds;

It is a deed upon condition undoubtedly, we think, and so ought it to have been held. In what may he regarded as the premises, the property conveyed is described, and the consideration set forth as paid by the grantee is one dollar. Then follows this provision, “ authorizing her (the grantee), in my name or otherwise, but at her own expense, to carry on and possess the same (the farm granted), according to the tenor herein written.” Then follows this clause: “ Now the condition of this assignment is such that said John Watters (the grantor) is to have a good and sufficient living out of the aforesaid farm for his natural lifetime, and all other necessary expenses, and the residue to remain in the hands of the said Nancy Lasher or her heirs; that is to say, if the above conditions are fully complied with, then this assignment to remain in full force and virtue, or otherwise to become null and void, and of none effect.” I have omitted the inaccuracies in spelling, for mala grammatiea non vitiat ehartam.

Regarding the clause as a portion of the habendum of the deed, the qualification of the granting portion is not in excess of its office. Blackstone, vol. ii. p. 298, says, “ the habendum may lessen, enlarge, explain or qualify the premises, but not totally contradict, or be repugnant to the estate granted in the premises :” Co". Litt. 21; Touchstone, cap. 5, No. 2. Now here the habendum merely explains the premises in this, that an absolute estate was not intended to be granted upon the consideration mentioned, which would be by gift, and it controls the generality of the words in the premises.

Here, then, we have a grant with a reservation to the grantor out of it, the real consideration in fact for the conveyance, with conditions to enforce it, and provisions for the defeat of the grant in case the conditions should be disregarded or not complied with by the grantee. We may not ignore all this, as the argument in support of the judgment below does. A deed must be so construed, if possible, that no part shall be rejected : 6 Wright 387; 1 S. & R. 374. This is elementary. To give these provisions effect is to require that the grantee -in the deed furnish the living to the grantor specified, or in default to subject her to lose the estate by re-entry for the condition broken. He intended, and reserved, a living out of the estate to be furnished by the grantee. The idea of the defendant in error that she w.as to stand seised to the use of the grantor for life, while he occupied the farm, is a view subject to many objections, but may be answered most readily by the terms of the deed itself. By it she was authorized to take possession of the farm, and to carry it on at her own expense, “according to the tenor herein written.” Could it have been intended that the grantor, notwithstanding this provision, was to remain in possession and occupy the land to furnish his own living at his own expense ? This would be to attribute an intention to the grantor in direct contravention of his deed. This was manifestly not the understanding of the grantee either, for she took possession, moved on the farm and remained on it for several years. Such a construction of the conveyance is altogether inadmissible. The facts that there was a failure of the condition to furnish the grantor a living, &c., from the premises by the grantee, and that there was a re-entry by him for condition broken, was most important testimony on the trial, and should have been received. This, if true, would have re-invested him with title. We think this should have been the course of the learned court on the offer of testimony, and because it was not, we must reverse the judgment.

There are some facts set forth in the defendant’s counter-statement of which we see no evidence whatever. Without attributing the least intention to mislead, to the learned counsel who prepared it, we desire to take this occasion to say that no history of the parties or of the case is at all allowable, unless disclosed by the testimony in the case.

Judgment reversed, and venire de novo awarded.