Gargis v. Kennemer

• Decision Date: 30 June 1927
• Docket Number: 8 Div. 956
• Citation: 113 So. 620,216 Ala. 494
• Parties: GARGIS v. KENNEMER et al.
• Court: Alabama Supreme Court

113 So. 620

216 Ala. 494

GARGIS v. KENNEMER et al.

8 Div. 956

Supreme Court of Alabama

June 30, 1927

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Bill in equity by John Gargis against J.W. Kennemer and others, and cross-bill by respondents. From a decree overruling a demurrer to the cross-bill, complainant appeals. Reversed rendered, and remanded.

W.H Shaw, of Tuscumbia, for appellant.

Nathan Nathan & Nathan, of Sheffield, for appellees.

ANDERSON C.J.

While the deed in question acknowledges payment of the purchase money by John Gargis and his wife, Emma Gargis, the grant is to John Gargis alone. The habendum says, "To have and to hold the same unto the said John Gargis and Emma Gargis," thus creating a conflict between the grant and habendum. It is not a question of an open undefined estate which is subject to be explained, limited, or qualified, as held in the case of Graves v. Wheeler, 180 Ala. 412, 61 So. 341. 4

Thompson on Real Property, § 3326.

"Where there is no repugnancy between the granting clause and the habendum, a party not named in the former may take under the deed if named in the latter. Thus there is no repugnance between the two clauses when the party who is to take is not named in the grant, but may be ascertained from the habendum. A person who is not named in the premises as a grantee may take by way of remainder, but when the grant is to one person the habendum cannot be operative when it is to him and another to take as joint tenants or tenants in common. In a case of that character the habendum would be at variance with the grant." 1 Devlin on Real Estate (Deeds) § 219.

"If one grantee is named in the premises, and in the habendum the same person with another is named, the grantee named in the premises will take the estate conveyed, and the person not so named will take nothing." 4 Thompson on Real Property, § 3328.

The words of the granting clause will prevail where there is a conflict between the prefatory words, the granting clause, and the habendum clause of the deed. Van Hoose v. Dickson, 157 Ala. 459, 47 So. 718; Graves v. Wheeler, 180 Ala. 412, 61 So. 341; Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Webb v. Webb, 29 Ala. 588. We therefore hold that John Gargis took the entire estate under the deed and his wife, Emma, took nothing.

The trial court erred in overruling the demurrer to the cross-bill, and the decree of the circuit court...