Baskett v. Sellers

• Decision Date: 31 March 1892
• Citation: 19 S.W. 9,93 Ky. 2
• Parties: Baskett v. Sellers et al.
• Court: Kentucky Court of Appeals

19 S.W. 9

93 Ky. 2

Baskett v. Sellers et al.

Court of Appeals of Kentucky.

March 31, 1892

Appeal from circuit court, Henderson county.

"Not to be officially reported."

Action by Elijah Sellers and others against A. H. Farley to foreclose certain mortgages.There was a judgment for plaintiffs, and the lands were sold to John Baskett, who appeals from a judgment overruling his exceptions to the report of sale.Reversed.

BENNETS J.

A. H B. Farley executed mortgages to the appellees on the tract of land in controversy.The fee-simple title to the land was sold by the commissioner of the Henderson circuit court pursuant to a judgment of that court foreclosing said mortgages.The appellant purchased said land at the decretal sale.

He filed exceptions to the report of sale, disclosing the fact that the mortgagor, A. H. B. Farley, owned only a life-estate in said land, remainder to any children that she might have.The granting clause in the deed under which A. H. B. Farley held said land is: "For and in consideration of natural love and affection the said party of the first part [the father] has for his daughter, the said A. H. B. Farley, and his son, T. L. Farley, parties of the second part, the party of the first part has this day sold, and by these presents doth grant, bargain, sell, and convey to the parties of the second part the following described land," etc.The habendum is: "To have and to hold to them, my said daughter and son, and their children, forever," etc.It is contended that the habendum limiting the estate to the children of the vendees is repugnant to the granting clause, which conveys to the grantees a fee-simple title; and such repugnancy renders the limitation in the habendum void; and the fee-simple estate granted by the granting clause is unaffected by the habendum.Now, the granting clause contains no words of inheritance.But, by virtue of section 7, art. 1, c. 63, Gen. St., which provides "that, unless a different purpose appear by express words or necessary inference, every estate in land created by deed or will, without words of inheritance, shall be deemed a fee-simple, or such other estate as the grantor or testator had power to dispose of."The statutesupra, creates, when words of inheritance are omitted, by implication, a fee-simple estate, unless a "different" purpose "appear" by express words or necessary inference.If the implication which arises by virtue of the statute, supra, is controlled by "express words or necessary inference," there can be no repugnancy.But suppose the habendum is repugnant to the implied...