Adams v. Merrill

• Decision Date: 27 January 1909
• Docket Number: No. 6,146.,6,146.
• Parties: ADAMS et al. v. MERRILL.
• Court: Indiana Appellate Court

45 Ind.App. 315

87 N.E. 36

ADAMS et al.

v.MERRILL.

No. 6,146.

Appellate Court of Indiana.

Jan. 27, 1909.

On rehearing.

For former opinion, see 85 N. E. 114. Rehearing denied.

MYERS, J.

In support of appellee's petition for a rehearing, counsel earnestly and ably argue that the limitation in that portion of the deed of Barnard following the description of the real estate should be held void because of the repugnancy between it and the premises of the deed. They also very respectfully contend that in our original opinion herein, and in Evans v. Dunlap, 36 Ind. App. 198, 75 N. E. 297, we have abrogated the rule stated in Chamberlain v. Runkle, 28 Ind. App. 599, 63 N. E. 486, and in Lamb v. Medsker, 35 Ind. App. 662, 74 N. E. 1012. In view of the apparent earnestness of counsel in these matters, we have again taken the time to carefully reconsider this case, and, in the hope of making ourselves the better understood, have concluded to add the following observations, although they may appear to be elementary.

It will be proper, as preliminary to what we shall hereafter say, to call attention to the fact that in Evans v. Dunlap, supra, like the case at bar, the granting clause was expressed in general terms, while in the other two cases the granting clause contained words of limitation. Keeping in mind this difference between the cases mentioned may result in a better understanding of our theory of this case.

Before the enactment of our statute (1 Rev. St. 1852, p. 232, c. 23, § 12) on which counsel base their claim, it was necessary, in order to convey an estate in fee simple, to insert the word “heirs” or other words of limitation in the premises of the deed, if words of limitation were inserted in the habendum, and it was sufficient to insert words of purchase only in the premises, leaving to the habendum its proper office-of the expression of words of limitation-the purpose of the habendum being to limit and define the estate or amount of interest or ownership in the premises granted, as for life or in fee, etc. It was usual, however, to insert in the premises, in connection with the words of grant, the estate or quantity of ownership. If the granting part of the deed contain proper words of limitation, the habendum may be dispensed with entirely; but if the latter be used and the limitation therein be repugnant to the limitation in the premises, it will be treated as having no validity or effect. When, however, the grant is indefinite because of its generality in respectto the estate in the lands conveyed, it may be defined, qualified, and controlled by the habendum. So the habendum is useful only when the words of grant leave the subject of the extent of ownership open to explanation. A simple grant to a person named, without any particular words of limitation in the premises, leaves the extent of ownership open to explanation. Evans v. Dunlap, supra. Such a grant, indefinite because of its generality-being without limitation either in the premises or in the habendum-would be construed at common law to mean a grant for life only. Hadlock v. Gray, 104 Ind. 596, 599, 4 N. E. 167;Lamb v. Medsker, 35 Ind. App. 665, 74 N. E. 1012; Chamberlain v. Runkle, supra. Our statutes (sections 3958-3960, Burns' Ann. St. 1908; 1 Rev. St. 1852, p. 232, c. 23), besides furnishing short forms for deeds of conveyance, make it unnecessary to use the words “heirs and assigns of the grantee” to create an estate of inheritance; but if a lesser estate...