Fogarty v. Stack

• Decision Date: 17 May 1888
• Parties: FOGARTY <I>et al.</I> <I>v.</I> STACK <I>et al.</I>
• Court: Tennessee Supreme Court

8 S.W. 846

FOGARTY et al.v.

STACK et al.

Supreme Court of Tennessee.

May 17, 1888.

Appeal from chancery court, Shelby county, W. W. McDOWELL, Chancellor.

Weatherford & Estes, for appellants. Metcalf & Walker, for appellees.

FOLKES, J.

The only question in this case is as to the proper construction of a deed made by defendant Ed Stack to his wife, Margaret. The language of the deed is as follows, (so much of it as is necessary to be quoted:) "Hath given, granted, bargained, sold, and conveyed, and by these presents, doth give, bargain, grant, sell, and convey, unto the party of the second part, and her heirs, in fee-simple, forever, a certain lot," etc., (describing it;) "to have and to hold said lot of land for the sole and separate use and benefit of the said second party, free from the debts, liabilities, and control of present or any future husband, with power to sell, and by deed made and executed jointly with her husband, convey the said lot of land, and vest the proceeds in other property, to be held for the same sole and separate use as the property herein conveyed. Should said second party die in the life-time of said first party, then said lot of land is to revert to him in fee-simple;" "to have and to hold the above-described land and premises, together with all and singular the rights and privileges, building, improvements, and appurtenances, of, in, or to the same belonging, or in anywise appertaining, unto the party of the second part, and her heirs, forever." The wife died, without issue, and without having disposed of the property, leaving the husband surviving. Nieces and nephews of the wife, as her heirs at law, now file this bill to recover the property from the husband.

It is insisted for the complainants that the language, "her heirs, in fee-simple, forever," cannot be controlled by the reservation or provision for the property to revert to the grantor, contained in the first habendum, (there being, as is noticed, two habendums,) as provision in the habendum repugnant to the estate before granted being void. We may concede all that is contended for as to this rule of construction of common law, and it is sufficient answer thereto to say that the rules of the common law, which looked at the granting clause, and the habendum and tenendum as separate and independent portions of the deed, each with its particular functions and office, have long since become obsolete in this country, and certainly in this state. The true rule is...