Blair v. Kenaston

• Decision Date: 11 May 1937
• Docket Number: 43758.
• Citation: 273 N.W. 184,223 Iowa 620
• Parties: BLAIR v. KENASTON et al.
• Court: Iowa Supreme Court

273 N.W. 184

223 Iowa 620

BLAIR v. KENASTON et al.

No. 43758.

Supreme Court of Iowa.

May 11, 1937

Appeal from District Court, Cedar County; H. C. Ring, Judge.

The plaintiff brought an action to quiet title to real estate. The defendants filed a counterclaim praying that the title be quieted in certain defendants. From a judgment and decree quieting title in the defendants David Dwight Kenaston and Walter Sheldon Kenaston, the plaintiff appealed.

Reversed and remanded.

Wills & Wills, of Butte, Neb., and Salinger, Reynolds & Mayers, of Carroll, for appellant.

France & France, of Tipton, for appellees.

STIGER, Justice.

On May 27, 1899, David Ayres and wife executed and delivered to Amanda Kenaston a deed which reads as follows:

" This deed of bargain and sale, Made and executed this 27th day of May 1899, by and between David Ayres and Mary A Ayres, husband & wife of the County of Cedar State of Iowa of the first part, and Amanda E. Kenaston of the second part Witnesseth: That the said parties of the first part, for and in consideration of the sum of One 00/100 - Dollars, in hand paid by the said parties of the second part, the receipt whereof is hereby acknowledged, have granted and sold, and do - by these presents grant, bargain, sell, convey and confirm unto the said second party the following Real Estate, lying and being situated in the County of Cedar State of Iowa to-wit:

The West eighty two & 24/100 (82 24/100 ) acres of the North West quarter of Section Thirty one (31) Township Eighty (80) North Range One (1) West of the 5th P. M. Cedar County Iowa The intention being to convey hereby a Life Interest to said Real Estate including any Right of Homestead had therein. The said Amanda E. Kenaston to have and receive all rents and profits derived from said land during her life time and at her death the Land herein described to go to her children or legal heirs.

To have and to hold the said premises above described with all appurtenances thereto belonging, unto the said second party her heirs and assigns forever. The said David Ayers hereby covenanting for his heirs, executors and administrators that the above described premises are free from any incumbrance: * * * That he has full right, power and authority to sell the same, and will warrant and defend the title unto the said second party her heirs and assigns, against the claims of all persons whomsoever lawfully claiming the same. * * *"

At the time the deed was delivered to the grantee, she had three children, Laura Kenaston Blair, wife of plaintiff, and the defendants David Dwight Kenaston and Walter Sheldon Kenaston. No other children were born to the grantee.

In 1893, the plaintiff married Laura Kenaston, who died in 1905, leaving surviving her a daughter, Opal Blair, and her husband. Opal Blair passed away in 1908, leaving as her only heir at law her father, John W. Blair, plaintiff herein. It thus appears that at the time this action was commenced, the plaintiff was the owner of whatever interest in the real estate his wife, Laura Kenaston Blair, acquired under the deed.

In 1930, Amanda Kenaston executed her last will and testament and, after making some bequests, devised the residue of her property to the defendants David Dwight Kenaston and Walter Sheldon Kenaston.

The plaintiff brought this action to quiet title to an undivided one-third interest in the real estate conveyed bye said deed, contending that Amanda E. Kenaston took only a life estate and that her three children received a vested remainder in the real estate and alleges that he is the owner of the undivided one-third interest obtained by his wife, Laura Kenaston, under said deed.

Defendants filed a counterclaim alleging that the deed, under the Rule in Shelley's Case, conveyed to Amanda E. Kenaston a fee-simple title to the real estate and that they are the absolute owners of the real estate as residuary devisees under her will.

The trial court found for the defendants and entered a decree quieting the title in David Dwight Kenaston and Walter Sheldon Kenaston. Plaintiff appealed.

It will be noticed that the grantor struck from the granting clause in the deed the printed words " her heirs and assigns forever" and " the intention being to convey an absolute title in fee to said real estate including any rights of homestead."

Under our statutes, Code §§ 10041, 10042, words of inheritance are not necessary to convey an estate in fee simple and every conveyance passes all of the interest of the grantor therein unless a contrary intent can be reasonably inferred from the terms used. The absence of words of inheritance may be very significant, for the law does not say in express terms that every conveyance where these words are omitted creates an estate in fee simple, while the use of technical words of inheritance are strongly indicative of an intention to convey an estate in fee. Husted v. Rollins, 156 Iowa, 546, 137 N.W. 462, 42 L.R.A. (N.S.) 378; Dolan v. Newberry, 204 Iowa, 443, 215 N.W. 599; Beedy v. Finney, 118 Iowa, 276, 91 N.W. 1069; Yeager v. Farnsworth, 163 Iowa, 537, 145 N.W. 87.

The grantor, David Ayres, lined out from the premises or granting clause the words of inheritance.

The habendum of the deed reads, " to have and to hold the said premises * * * unto the said second party her heirs and assigns forever," which purports to define the estate received by Amanda E. Kenaston as a fee-simple title. At common law the object of an habendum clause in a deed was to define the grantee's estate, but where the estate has been clearly defined and expressed in the premises or granting clause, if the habendum clause is inconsistent or repugnant thereto, it must yield to the granting clause. The habendum will not be permitted to defeat the clear intent of the grantor expressed in the granting clause. The modern rule in this state is to gather the intent of the grantor from the entire instrument and the circumstances surrounding its execution. Farmers Bond & Mortgage Co. v. Walker, 207 Iowa, 696, 223 N.W. 497; Yeager v. Farnsworth, 163 Iowa, 537, 145 N.W. 87; Husted v. Rollins, 156 Iowa, 546, 137 N.W. 462, 42 L.R.A.(N.S.) 378; Dolan v. Newberry, 204 Iowa, 443, 215 N.W. 599.

The granting clause reads:

" Sell, convey and confirm unto the said second party the following real estate * * * the intention being to convey hereby a life interest to said real estate including any right of homestead had therein. The said Amanda Kenaston to have and receive all rents and profits derived from said land during her life time and at her death the land herein described to go to her children or legal heirs."

The wording of the granting clause, which was in writing, clearly reveals the intention of the grantor to convey to Amanda E. Kenaston a life estate only, which will control over the repugnant provision of the habendum, and we must give full effect to this intention unless we are prevented from doing so by the application of the rule in Shelley's Case. The deed before us for construction was executed prior to the time the rule was abolished in this state. See Code, § 10059.

In the case of Doyle v. Andis, 127 Iowa, 36, 102 N.W. 177, 69 L.R.A. 953, 4 Ann.Cas. 18, the rule was held to be a part of the common law of this state and was defined as follows:

" When a person takes

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