Bodine's Adm'Rs v. Arthur, &C.

• Decision Date: 18 December 1890
• Citation: 91 Ky. 53
• Parties: Bodine's Adm'rs v. Arthur &c.
• Court: Kentucky Court of Appeals

91 Ky. 53

Bodine's Adm'rs v.Arthur &c.

Court of Appeals of Kentucky.

December 18, 1890.

APPEAL FROM UNION CIRCUIT COURT.

M. MERRITT FOR APPELLANTS.

HUGHES & HUGHES ON SAME SIDE.

PRENTICE & DAVIS, H. D. ALLEN FOR APPELLEES.

JUDGE BENNETTDELIVERED THE OPINION OF THE COURT.

The conveyancing clause of the deed from Dr. Harding and wife to Mrs. Bodine is as follows: "Have this day given, granted, bargained and sold to Hettie E. Bodine."The habendum is as follows: "To have and to hold unto the said Hettie E. Bodine, wife of the said B. W. Bodine, and to her children by him begotten forever."

It is contended that the conveyancing clause and the habendum are repugnant to each other; consequently, the latter must yield to the former.It is undoubtedly true that in case of repugnancy between the two, and it can not be determined from the whole instrument and attendant circumstances with reasonable certainty that the grantor intended that the habendum should control, the conveyancing clause must, in that case, control, for the reason that words of conveyance are necessary to the passage of the title, and the habendum is not ordinarily an indispensable part of a deed; hence, in the case above indicated, the conveyancing clause must control.But where it appears from the whole conveyance and attendant circumstances that the grantor intended the habendum to enlarge, restrict or repugn the conveying clause, the habendum must control.It is, in such case, to be considered as an addendum or proviso to the conveyancing clause, which, by a well-settled rule of construction, must control the conveyancing clause or premises, even to the extent of destroying the effect of the same.This is so, because it is the last expression of the grantor as to the conveyance, which must control the preceding expression.(Henderson v. Mack, 82 Ky., 379;Ratliffe, &c., v. Marrs, &c., 87 Ky., 26.)It is clear, judging from the whole conveyance and attendant circumstances, that the grantors intended the habendum to operate as an addendum or proviso to the conveyancing clause, and to control the same to the extent of limiting the estate conveyed to Mrs. Bodine to a life estate, remainder to her children begotten by R. W. Bodine.For, according to the uniform decision of this State, such conveyances give to the named vendee a life estate, remainder to the children.This construction grows out of the fact that, as there must be parties, vendors and vendees in order to make a valid...