Dunbar v. Aldrich

• Decision Date: 10 February 1902
• Citation: 79 Miss. 698,31 So. 341
• Court: Mississippi Supreme Court
• Parties: BEATRICE DUNBAR ET AL. v. LYMAN G. ALDRICH ET AL

31 So. 341

79 Miss. 698

BEATRICE DUNBAR ET AL. v. LYMAN G. ALDRICH ET AL

Supreme Court of Mississippi

February 10, 1902

FROM the chancery court of Jefferson county. HON. WILLIAM C MARTIN, Chancellor.

Miss Beatrice Dunbar and others, appellants, were complainants in the court below; Aldrich and others, appellees, were defendants there. From a decree of the court below in defendants' favor the complainants appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Affirmed.

Wade R Young and McWillie & Thompson, for appellants.

In the case at bar there is no conflict of fact, and the material question submitted is whether the rule "that an intention manifested in the recitals of a conveyance will be controlled by the terms of the granting part of the deed" can be applied to the facts of the case without doing violence to settled principles of jurisprudence.

The intent of the grantor is to be effected in all cases, if that intent can be ascertained; and rules of construction are only designed to aid the court when there is doubt as to what the grantor intended.

In modern times technical rules have given way to the more sensible rules of construction, which is, in all cases, to give effect to the intention of the parties, when no principle of law is thereby violated. This intention is to be ascertained by taking into consideration all the provisions of the deed, as well as the relation of the parties to it. 17 Am. & Eng. Enc. Law (2d ed.), 8.

Instruments are to be construed together, if one refers to the other, so as to expressly or impliedly make the other a part thereof. Ib., 10.

This has always been the doctrine of our courts, and is forcibly expressed in the case of Hart v. Gardner, 74 Miss 159.

The proper end of all rules of construction is to effect the intention of the parties to the instrument; and the intention of a grantor in a deed is to govern, when it can be ascertained, equally as in the case of other instruments. In arriving at it the entire paper must be considered. Blackstone says that the construction "must be made upon the entire deed, and not upon disjointed parts of it." If clauses are repugnant to each other, they must be reconciled, if possible; and the intent, and not the words is the principle 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. As was well said in Robinson v. Payne, 58 Miss. 692, the intention must prevail, whether it is discovered in the first or the last clause of the instrument."

If your honors now hold that because of the use of the technical words "demise, release, and quitclaim unto the said William H. Dunbar and his heirs," the manifest intention of the grantors to give effect and validity to the will of John W. Dunbar, which conveyed the plantation to William H. Dunbar, "to be possessed and enjoyed by him for the term of his natural life, and after his death to be possessed and enjoyed by his children," is defeated by the use of the word "heirs," instead of the word "children," in the deed, you, in effect, announce that hereafter the intent of the grantor is to be ascertained, not from the entire deed, and the relation of the parties to it, and the will and other papers referred to, but from the meaning which the common law implies from the use of technical words in the granting clause, and you necessarily overrule what has been heretofore the settled doctrine of the court.

You have before you the will of John W. Dunbar, conveying the plantation to William H. Dunbar for life, with remainder in fee to his children; you have before you the decree of the court, denying the probate of the devise of the real property, because the will was executed in the presence of only two witnesses; and you have before you the deeds, referring to the will, reciting that John W. Dunbar had devised the property to William H. Dunbar, to be possessed and enjoyed by him for the term of his natural life, and, after his death, to be possessed and enjoyed by his heirs; and declaring the intent of the grantors in the execution of the deeds to be to give effect and validity to the will; and you have the granting clause, "demise, release, and quitclaim unto the said William H. Dunbar and his heirs." You cannot fail to notice that the only variance between the will and the deeds is that the conveyancer, in writing the deeds, used the word "heirs," instead of the word "children," both in recital and in the granting clause, and because the word "heirs," by implication of law, operates to convey the fee, you disregard the settled doctrine of the court, ascertain the intention of the grantors, not from the entire paper, but from a disjointed part of it. There is nothing, and never has been anything, sacramental in the word "heirs," except that, when not otherwise explained, it operates, by implication of law, to convey the fee.

You find clauses in the deed which are repugnant, if you put the technical construction upon the word "heirs," certainly, but that does not reconcile the repugnancy, but, to the contrary, defeats the expressed intention, both of the testator and of the grantors.

We propound the quaere of the distinguished counsel for the appellant, in Robinson v. Payne, 58 Miss. 690: "If, on its face, there be no sort of difficulty, and no hesitation of mind until you invoke rules of construction, what creates the doubt?" Why, the rules of construction do.

The rule is to ascertain and carry out the intention, if that can be done without doing violence to some "positive rule of Law." Williams v. Claiborne, 7 Smed. & M., 496.

An entire clause in a deed may be rejected, where, from unavoidable necessity, it is required to give effect to the intention. of the parties manifested on the face of the whole instrument. Alton v. Illinois Trans. Co., 12 Ill. 28.

The grammatical sense of a deed cannot be adhered to when a contrary intent is apparent, and the particular intent will be made to govern the general intent. Jackson v. Topping, 1 Wend., 388; Hancock v. Watson, 18 Cal. 137; Dawes v. Prentice, 16 Pick., 435. General words will be restrained by a particular recital, when such recital is used by way of limitation or restriction. Moore v. Griffin, 22 Me. 350. If the intention of a deed is clear, any part inconsistent with it will be rejected as false or mistaken. Emerson v. White, 29 N.H. 482.

Too much stress is not to be laid on the strict and precise meaning of words when the intention is manifest. The construction must be made on the entire instrument. It is said the premises of a will control, if it is impossible to reconcile them with the habendum, but the law will rather invert the words than pervert the sense. 3 Ark. 18. But words repugnant and plainly at variance with the general intention of an instrument should be rejected. 2 N.H. 175; 2 Metc., 41; 1 Dev., 237; 1 Nev. 283; 28 Mo. 478.

What positive rule of law, what principle of jurisprudence, or what rule of construction is there which requires your honors to take a single clause of the deed, the granting clause, and because you find that the conveyancer has used the word "heirs," instead of the word "children," used in the will, to disregard all the other recitals of the deed, disregard the will and other papers referred to, and the relation of the parties to it, and, instead of reconciling the apparent repugnancy by giving to the word "heirs" the meaning which the grantors obviously intended, give to the whole instrument a construction which is in conflict with every other clause, defeats the manifest intention of both the testator and the grantors, and makes a new and different will than that which the grantors declared their intention to carry into effect?

If we be correct touching the construction of the deed, then the statute of limitations is out of the case. This is too plain for argument.

Reed & Brandon, for appellees.

The authorities, when properly construed, all give effect to the operative part of a deed where there is a conflict between it and the preamble or recitals. Specially so in cases like this, where years have intervened, and rights of third parties are to be considered.

In Boone's Law of Real Property, sec. 300, we find: "The recitals will not be permitted to control the operative parts of the deed, if the plain intent would be thereby defeated." See cases cited thereunder in note 3. See also Schermerhorn v. Negus, 2 Hill (N. Y.), 335, and Patterson v. Cole, 25 Wend. (N. Y.), 456.

A party to a...