Belcher v. Ramey

• Court: Kentucky Court of Appeals
• Writing for the Court: HURT, J.
• Citation: Belcher v. Ramey, 173 Ky. 784, 191 S.W. 520 (Ky. Ct. App. 1917)
• Decision Date: 09 February 1917
• Parties: BELCHER ET UX. v. RAMEY ET AL.

191 S.W. 520

173 Ky. 784

BELCHER ET UX. v. RAMEY ET AL.

Court of Appeals of Kentucky.

February 9, 1917

Appeal from Circuit Court, Pike County.

Action by Willie Belcher and wife against Miles Ramey and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

J. J Moore and W. W. Barrett, both of Pikeville, for appellants.

Hager &amp Stewart and E. P. Rice, all of Ashland, and Auxier, Harman &amp Francis, of Pikeville, for appellees.

HURT J.

On the 28th day of July, 1883, John Hackney and Frankie Hackney, his wife, executed and delivered to Harvey G. Belcher and Victory Belcher, his wife, a deed which purported to convey to them the title to a tract of land in Pike county. The deed, leaving out the description of the lands, which is not necessary to be included in order to determine the proper construction to be placed upon it, is as follows:

"This deed of conveyance made and entered into this 28th day of July, 1883, between John Hackney and Frankie Hackney, his wife, party of the first part, and Harvey G. Belcher and Victory Belcher, his wife, and the heirs of her body, party of the second part, witnesseth: That said party of the first part for and in consideration of the sum of three hundred dollars, cash in hand paid, do hereby sell and convey to the party of the second part, his heirs and assigns, the following described property, to wit: * * *

To have and to hold the same, together with all the appurtenances thereunto belonging, unto the party of the second part, his heirs and assigns, forever. And the said party of the first part hereby covenants with the said party of the second part that they will warrant the title to the property hereby conveyed unto the said party of the second part and his heirs and assigns forever.

In testimony whereof the party of the first part has hereunto subscribed their name the day and year aforesaid.

John Hackney.

Frankie her X mark Hackney."

After the delivery of the deed to the grantees it was accepted by them and caused to be recorded in the clerk's office of the county court. Thereafter Harvey G. Belcher and Victory Belcher, his wife, sold and by deed conveyed the land to Moses Belcher. Moses Belcher sold and by deed conveyed it to James M. Ramey. Thereafter James M. Ramey sold and by deed conveyed the minerals in the lands to the Mason Coal & Coke Company, and the surface and other rights in the lands he sold and by deeds conveyed to Miles Ramey and Kinney Ramey. The Mason Coal & Coke Company sold and by deed conveyed the minerals in the lands to the Kentland Coal & Coke Company. The conveyances from Harvey G. Belcher and Victory Belcher to Moses Belcher and from Moses Belcher to James M. Ramey purported to convey the entire estate in the lands, and the deeds from Ramey to Mason Coal & Coke Company and from it to Kentland Coal & Coke Company purported to convey the feesimple title to the minerals, and the deeds to Miles Ramey and Kinney Ramey purport to convey the entire estate in the lands, except the mineral rights.

The appellants, who are the children of Harvey G. Belcher and Victory Belcher, and who claim that the deed from John Hackney and wife to their ancestors conveyed only a life estate in the lands to Harvey G. and Victory Belcher, and the remainder interest to them as the children of Victory Belcher, instituted this action against the present claimants of the lands and mineral rights, whereby it is sought to have a construction of the deed from John Hackney, etc., to Harvey G. Belcher, etc., which will adjudge that the conveyance invested Harvey G. and Victory Belcher with only a life estate in the lands, with remainder to appellants as her children, and to have the deeds from their father and mother to Moses G. Belcher, and from him to James M. Ramey, and from him to the subsequent purchasers and vendees of the lands and minerals, canceled and declared void to the extent that they purport to convey a greater estate than the alleged life estate of Harvey G. Belcher and Victory Belcher in the lands.

The only question to be determined is what estate the deed from Hackney, etc., conveyed and what estate in the lands vested in Harvey G. Belcher and Victory Belcher by reason of the deed. The circuit court was of the opinion that the deed vested the feesimple estate in the lands in Harvey G. Belcher and Victory Belcher, and that there was no remainder over, and hence sustained a general demurrer to the petition, and from its judgment this appeal is taken.

It will be observed that the parties to the deed both in the caption and in the body of the deed are stated as if there was only one person of each. The grantors in the deed are two, but the draftsman of the deed refers to them in the caption, granting clause, habendum, and in the warranty, not as parties of the first part, but as " party of the first part," as though there was only one. The same is true of the parties of the second part. There are two of them, at least; yet in the caption, granting clause, habendum, and warranty they are described as party of the second part and not parties of the second part. In the caption the party of the second part is "Harvey G. Belcher and Victory Belcher, his wife, and the heirs of her body." Here the feminine form of the pronoun is used to describe the party of the second part. The granting clause conveys the title to "party of the second part, his heirs and assigns." The habendum is "unto the party of the second part, his heirs and assigns forever." The title is warranted "unto the party of the second part and his heirs and assigns forever." Thus it will be observed that the party of the second party throughout the deed is referred to as though only one person, and in the caption the party of the second part is described as being feminine, and in the granting clause, habendum, and warranty as being masculine. These are, however, only grammatical inaccuracies which should not interfere with a proper construction of the deed in accordance with the intent of the grantors. It is not reasonable that the grantors should have intended that the heirs of Victory Belcher should be parties of the second part to the deed, and then in the granting, habendum, and warranty clauses of the deed entirely lose sight of them and convey and warrant the title to the property to the heirs and assigns of Harvey G. Belcher, forever. Yet to give the deed the construction contended for by appellants would end in that result. The grantors could not have intended that there should be such a repugnancy between the various clauses of the deed. Looking to the entire deed for the intention of the grantors, and bearing in mind that the two grantees named were husband and wife, that the two are, at all times, called the party of the second part, as though there was only one person, who in the caption is referred to as though a woman, and in the granting clause, habendum, and warranty as though a man, it is more reasonable to conclude that, when the word "heirs" was used, their heirs were intended rather than his or her heirs. If this conclusion is correct, the "parties of the second part" are Harvey G. Belcher and Victory Belcher, his wife, and the heirs of their bodies, and the conveyance was to the "parties of the second part, their heirs and assigns," the habendum was "unto the parties of the second part, their heirs and assigns, forever," and the warranty of title was a convenant to the "parties of the second part and their heirs and assigns forever."

The appellants, however, contend that the grantors in the deed used the word "heirs" in the sense of "children," and hence that the word "heirs," as used in the deed, is a word of purchase, and not of limitation, and that they, as the children of the grantees named in the deed, take under the deed and not by descent, as regards the land in controversy. In other words, the deed conveyed only a life estate in the lands to their father and mother, and the remainder to them.

The Legislature, in an endeavor to make the laws of property, as applied to the subjects of conveyances and devises, more regular and better understood, has enacted three statutes, which are sections 2342, 2343, and 2345, Ky. St. The first of these statutes provides:

"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."

Section 2343, supra, is as follows:

"All estates heretofore or hereafter created, which, in former times, would have been deemed estates entailed, shall henceforth be held to be estates in fee simple; and every limitation on such an estate shall be held valid, if the same would be valid when limited upon an estate in fee simple."

Section 2345, supra, provides as follows:

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