Carllee v. Ellsberry
Decision Date | 25 March 1907 |
Parties | CARLLEE v. ELLSBERRY |
Court | Arkansas Supreme Court |
Appeal from Woodruff Circuit Court, Northern District; Hance N Hutton, Judge; reversed.
Reversed and remanded.
E. M CarlLee and N.W. Norton for appellants.
In case of conflict in a deed, the granting clause must prevail. 3 Ark. 18; 93 S.W. 979 and cases cited.
Andrews & Wood and Campbell & Stevenson, for appellee.
1. The intent of the grantor should prevail in the construction of a deed. 3 Ark. 56; 87 Ky. 26; 142 Mo. 310; 71 Mich. 633; 1 N.Y 102; 46 Mich. 305; 3 Atk. 136; 53 Ark. 185.
2. A deed should be construed as a whole, and effect should be given to every part of it, if possible. 3 Ark. supra, and other cases cited by appellant; 42 Pa.St. 386; 1 S. & R. 374; 8 S.W. 846; 14 S.W. 904; 66 S.W. 1023; 170 S.W. 702; 19 S.W. 1097; 86 S.W. 1111; 83 S.W. 436; 44 S.W. 250; 48 S.W. 635; 3 Wash. Real Prop. 468; 3 Kerr, Real prop. 2339; 2 Devlin, Deeds, § 214; 135 Penn. 620; 104 Cal. 298; 72 N.W. 339. The habendum and the proviso immediately following it in this deed limit the estate conveyed to Georgena Ellsberry; and this limitation, being expressed in appropriate words, should be given full force and effect in accordance with the statute. Kirby's Digest, § 733.
At the common law, a stranger to those mentioned in the premises of a deed might be introduced in the habendum as a grantee in the remainder. Devlin on Deeds, 2 Ed. §§ 219, 220; 70 S.W. 702; 146 Mo. 612; 86 Mo. 671; 165 Mo. 380; 70 N.W. 1006; 37 P. 1049; 41 Cal. 290; 60 Ind. 334; 3 Kerr, Real Prop. § 2339; Brewster, Conveyancing, 163.
3. Tiffany, Real Prop. 871. Hence, the appellee, although not appearing as a grantee in the premises of the deed, will take by way of remainder, since he does appear in the proviso following the habendum. 39 S.W. 164; 66 S.W. 1023; 60 Tex. 472; 73 Tex. 133.
4. The word "revert" used by the conveyancer in the deed was inapt, and its meaning should be construed in connection with the manifest intention of the grantor. 3 Wash. Real Prop. 2360.
This case involves the construction of so much of a deed executed by John T. Hamblett and wife to Georgena Ellsberry as is in the following words:
The granting clause of the deed conveys the lands described to the grantee in fee simple. The habendum defines the estate the grantee is to take to be the fee simple, with a proviso limiting the estate in certain contingencies to a life estate. The proviso or condition is repugnant to the granting clause. Which prevails?
In Maker v. Lazell, 83 Me. 562, 22 A. 474, the court said: . To support this rule of construction, the court cites and comments upon the following cases: Budd v. Brooke, 3 Gill 198; Ackerman v. Vreeland, 14 N.J.Eq. 23; Wilder v. Davenport, 58 Vt. 642, 5 A. 753; Cutler v. Tufts, 3 Pick. 272; Wilcoxson v. Sprague, 51 Cal. 640; Green Bay & Mississippi Canal Co. v. Hewett, 55 Wis. 96, 12 N.W. 382.
In Green Bay & Mississippi Canal Company v. Hewett, 55 Wis. 96, 12 N.W. 382, Mr. Justice Lyon, delivering the opinion of the court, said: "
In Whetstone v. Hunt, 78 Ark. 230, 93 S.W. 979, this court held that where the granting clause and the habendum of a deed conflict the habendum yields and the granting clause prevails. In the case before us the proviso or condition performs the office of a habendum, and there is no reason why it should have any greater force.
In Scull v. Vaugine, 15 Ark. 695. "Upon division of property among heirs and settlement of the widow's claims upon the estate, the heirs executed a deed * * * by which they conveyed to A. a slave * * * with the proviso that, 'in the event of his death before he came to the age of twenty-one years, or has heirs of his own, then to revert and become the joint property of the grantors,' * * * the court held, that the conveyance created an absolute estate in the grantee, that the proviso was repugnant to the deed and void."
In Green Bay & Mississippi Canal Company v Hewett, 55 Wis. 96, 12 N.W. 382, the owner of land conveyed it by deed, quitclaiming in the...
To continue reading
Request your trial-
Porter v. Henderson
... ... Aldrich, 79 Miss. 698, 31 So. 341; ... Bodine's Adm'rs v. Arthur, 91 Ky. 53, 14 ... S.W. 904, 34 Am.St.Rep. 162; Carl Lee v. Ellsberry, ... 82 Ark. 209, 101 S.W. 407, 12 L.R.A. (N.S.) 956, 118 ... Am.St.Rep. 60; Smith v. Crosby, 86 Tex. 15, 23 S.W ... 10, 40 Am.St.Rep. 818; ... ...
-
Harder v. Matthews
...133 Ind. 548, 33 N. E. 290;Wilkins v. Norman, 139 N. C. 40, 51 S. E. 797,111 Am. St. Rep. 767; Carl Lee v. Ellsberry, 82 Ark. 209, 101 S. W. 407,12 L. R. A. (N. S.) 956, 118 Am. St. Rep. 60;Flagg v. Eames, 40 Vt. 16, 94 Am. Dec. 363. [2][3] The habendum in the deed in question, ‘to the said......
- Lemon v. Lemon
- Alexander v. Morris & Company