Combs v. Hounshell

• Decision Date: 23 June 1961
• Citation: 347 S.W.2d 550
• Court: United States State Supreme Court — District of Kentucky
• Parties: Mace COMBS et al., Appellants, v. Evans HOUNSHELL et al., Appellees.

Page 550

347 S.W.2d 550

Mace COMBS et al., Appellants, v. Evans HOUNSHELL et al., Appellees.

Court of Appeals of Kentucky.

June 23, 1961.

Henry L. Spencer, O. J. Cockrell, Jackson, Earl B. Rose, Beattyville, for appellants.

Kash C. Williams, Moss Noble, Jackson, Edward Jackson, Beattyville, J. K. Wells, Paintsville, for appellees.

PALMORE, Judge.

In 1929 Alfred Hollon and wife, Malvery Hollon, purchased from Sarah and Letcher Gabbard a 120 acre tract of land in Breathitt County, Kentucky. The deed contained the following provision: 'Alfred Hollon and wife; Malvery Hollon is to hold said land their life time and then it is to go to Walker Hollon and Woodrow Hollon and Morton Hollon.' In 1935 Alfred and Malvery Hollon conveyed a 16-acre portion of the same tract, purportedly in fee simple, to the appellee Evans Hounshell. In 1958 Hounshell and wife executed an oil and gas lease on this 16 acres, resulting in a producing oil well and this lawsuit, in which the successors in interest of Walker, Woodrow and Morton Hollon claim, as against the Hounshells and their lessees, a remainder interest under the 1929 deed from the Gabbards.

Though both estoppel and adverse possession were pleaded in defense, it is doubtful that either was sustained by the evidence. However, the trial court made no findings in that respect and adjudged simply that the 1929 deed from the Gabbards vested the fee in Alfred and Malvery Hollon and passed no title to Walker, Woodrow and Morton Hollon. Hence this appeal.

Except for the description, the deed in question reads as follows:

'This Deed Of Conveyance, made and entered into this 30 day of January, 1929, between Sarah Gabbard and Letcher Gabbard, her husband, parties of the first part and Alfred Hollon and wife, Malvery Hollon, party of the second part,

'Witnesseth: That said party of the first part, for and in consideration of the sum of $500,000, Five Hundred Dollars, in hand paid by Alfred Hollon and wife Malvery Hollon, the receipt of which is hereby acknowledged, do hereby sell and convey to the part of the second part, her heirs and assigns, the following described property, towit:

'(Description)

'Alfred Hollon and wife; Malvery Hollon is to hold said land their life time and then it is to go to Walker Hollon and Woodrow Hollon and Morton Hollon.

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

'In Testimony Whereof, the party of the first part has hereunto subscribed names, the day and year aforesaid, 30 January, 1929.

'Sarah Gabbard,

'Letcher Gabbard.'

The basis for the trial court's judgment, and the theory on which the appellees rest their brief, is that rights cannot be vested in a stranger to a deed by exception or reservation. Flynn v. Fike, 1942, 291 Ky. 316, 164 S.W.2d 470; Sword v. Sword, Ky.1952, 252 S.W.2d 869; Washum v. Konrad, Ky.1955, 275 S.W.2d 427; White v. Hogge, Ky.1956, 291 S.W.2d 22. Also cited in support of this proposition is Howard v. Gross, 1941, 287 Ky. 415, 153 S.W.2d 989, but a review of that opinion discloses that the decision was based on the intent of the parties, as gathered from ambiguous language, and not on the theory that the alleged remaindermen were not mentioned in the granting or habendum clauses of the deed.

It is a fundamental rule of long standing in this jurisdiction that a deed is to be construed to effect the intention of the parties as it can be gathered from the language as a whole. Riley v. Riley, Ky.1954, 266 S.W.2d 109. 'If clauses are repugnant to each other they must be reconciled if possible; and the intent, and not the words is the principal thing to be regarded. * * * The technical rules of construction are not to be resorted to when the meaning of the party is plain and obvious.' Henderson v. Mack, 1884, 82 Ky. 379, 381, 6 Ky.Law Rep. 313.

The old rule that the estate conveyed by the granting clause could not be diminished by a later provision in the deed is no longer followed. Brown v. Harlow, 1947, 305 Ky. 285, 203 S.W.2d 60. Nor, indeed, is it necessary even that a deed contain words of conveyance if other words of equivalent meaning are used, East Jellico Coal Co. v. Jones, 1910, 141 Ky. 306, 132 S.W. 411; or that a grantee be named in the caption if he be specifically designated in the body of the instrument, Johnson v. Republic Steel Corp., 6 Cir., 1958, 262 F.2d 108.

It is certain that a remainder interest may be created in the habendum clause alone, without any words of conveyance running directly from grantor to remainderman and without the remainderman's being otherwise designated or constituted a 'party' to the deed. See, for example, Baskett v. Sellers, 1892, 93 Ky. 2, 19 S.W. 9, 10, 13 Ky.Law Rep. 909, and Hall v. Wright, 1910, 137 ky. 39, 138 Ky. 71, 127 S.W. 516; in each of which the three words, 'and their children,' appearing nowhere except in the habendum, were construed to limit the named grantees to a life estate and to vest in their children the fee simple title in remainder. Consonant with the principle followed in these cases, the earlier case of Henderson v. Mack, 1884, 82 Ky. 379, 6 Ky.Law Rep. 313, in which the granting clause conveyed to Young, his heirs and assigns, and the habendum said, 'To have and to hold * * * to the second party, his heirs and assigns, forever, with covenant of general warranty during his natural life, and after his death to go to and belong absolutely to Belle Mack,' etc., held that Young took a life estate and Belle Mack the remainder in fee. Apropos of the case before us now, the opinion commented that the expressions, 'heirs and assigns,' and 'heirs and assigns, forever,' in the granting and habendum clauses were words of common form and evidently had been used merely as such. By contrast, in that case as in this, the language creating the remainder was clearly tailored to the individual situation, thereby giving it greater weight in ascertaining the intention of the parties.

Pursuing this question of just how a remainder interest may be created, in the case of Atkins v. Baker, 1902, 112 Ky. 877, 66 S.W. 1023, 23 Ky.Law Rep. 2224, we find a deed cast in form strikingly similar to the one before us here. Following the caption, in which the grantee was identified as 'Lucy Atkins, wife of L. E. Atkins,' and the recitation of consideration, it continued thus:

'The parties of the first part have sold, and do hereby convey, unto the party of the second part, the following tract of land (describing it); to have and to hold unto said Lucy Atkins forever, with covenant of general warranty. In testimony whereof, witness our signatures this 22d day of July, 1892. This conveyance, at the request of said Lucy Atkins, is made to her for and during her life, and at her death to go to her husband, L. E. Atkins, should he survive her; and, in the event said Lucy Atkins should leave a child or children, then this land shall descend to them and their father according to the laws of descent.'

Just as in Henderson v. Mack, supra, and as in this case, the clause in controversy provided that the grantee should hold for life, after which the property was 'to go to' a person or persons not party to the instrument, and it was held sufficient to limit a life estate with remainder over.

As we see it there is no perceptible distinction between the Henderson and Atkins cases and this one. Again, as did the court in those cases, we find in the language of the instrument before us a perfectly clear and unambiguous indication of exactly what the parties wished to do, overriding any different construction that might otherwise be given to the more formal expressions in the granting and habendum clauses if...