Georgia State Savings Association v. Dearing

• Decision Date: 12 March 1917
• Docket Number: 226
• Citation: 193 S.W. 512,128 Ark. 149
• Parties: GEORGIA STATE SAVINGS ASSOCIATION v. DEARING
• Court: Arkansas Supreme Court

193 S.W. 512

128 Ark. 149

GEORGIA STATE SAVINGS ASSOCIATION v. DEARING

No. 226

Supreme Court of Arkansas

March 12, 1917

Appeal from Union Chancery Court; J. M. Barker, Chancellor affirmed.

Decree affirmed.

R. L Floyd, for appellant.

1. As the statute of nonclaim had run prior to the accruing of the cause of action under the covenants of warranty, plaintiff had a valid claim against the heirs to the extent of such amounts as they may have received from the estate of their ancestors. 14 Ark. 246; 32 Id. 714; 78 Id 531. Each of the heirs received an amount from the estate in excess of plaintiff's claim. Defendants assumed the debt and a deduction was made from the price or consideration pro rata, and all became personally liable. 42 Ark. 197, 301; 47 Id. 317; 59 Id. 280; Ib. 453; 63 Id. 268; 99 Id. 618; 110 Id. 70; 118 Id. 192.

2. The deed conveyed a fee simple estate to Minnie I. Dearing. Kirby's Digest, § 733; 1 Washb. Real Prop. (5 ed.) 82, 93. If not a fee tail the rule in Shelley's Case will apply. Kirby's Digest, § 735; 1 Washb. Real Prop. (5 ed.) 98-100; 58 Ark. 303. The latter case is conclusive.

3. If Mrs. Dearing only took a life estate, the heirs are personally liable on the covenants of warranty. But irrespective of the estate held by the widow, the heirs are personally liable by the assumption of the debt recited in the deeds to them.

W. E Patterson, for appellees.

1. The deed created an estate tail, and under section 735 Kirby's Digest, Mrs. Dearing took only a life estate. At her death her children became seized in fee simple. 44 Ark. 458; 49 Id. 125; 58 Id. 303; 67 Id. 517; 72 Id. 336; 75 Id. 19; 95 Id. 18; 94 Id. 615; 98 Id. 570. The habendum clause does not add to or take from the estate granted or limited to "bodily heirs" or "heirs of the body." 98 Ark. 570; 95 Id. 18; 94 Id. 615.

The habendum clause does not enlarge the estate. Cases supra. When Mrs. Dearing died her deed of trust was a nullity, as she took only a life estate. 16 Cyc. 636, 641; 49 Ark. 130.

2. The heirs were not liable and the claim was barred. 33 Ark. 640; 74 Id. 348; 97 Id. 492; 94 Id. 60; 18 Id. 334; Kirby's Digest, § 5399, as amended by Act No. 260, Acts 1911; 32 Ark. 714; 31 Id. 234; 56 Id. 445.

3. The heirs received nothing from the mother's estate.

4. There was no consideration for the assumption of plaintiff's debt. 110 Ark. 70; 27 Cyc. 1355. They are not estopped.

Mahony & Mahony, for appellees, Sanders and Mahoney, executors, adopt the above brief for appellees.

STATEMENT BY THE COURT.

Appellant instituted this action in the chancery court against appellees to recover judgment for a balance alleged to be due it and to have the same declared a lien upon the land described in the complaint. The material facts are as follows:

On the 6th day of December, 1892, H. L. Dearing, Jr., executed a deed to certain lands in Union County, Arkansas, and also one acre in the town of El Dorado. The consideration recited in the deed was the love and affection which he bore his beloved wife, Minnie I. Dearing. The granting clause is as follows:

"Do hereby grant, bargain, sell and convey, unto Minnie I. Dearing the following lands lying and situated in Union County, Arkansas, and described as follows, to-wit: (Here follows a description of the lands.) To have and to hold the aforegranted premises to the said Minnie I. Dearing and her heirs by me of her body born, or that may be hereafter to us born, in fee simple forever."

H. L. Dearing, Jr., died leaving surviving him his widow, Minnie I. Dearing, and three children, namely: H. L. Dearing, Irene Garrett and Annie Dearing (Annie Dearing afterward married W. G. Grace). His widow, Minnie I. Dearing, subsequently married Patrick McNalley, and on the 27th day of June, 1911, executed a mortgage on the one-acre tract in El Dorado above referred to, to secure a loan to her by appellant of $ 1,000. She died intestate on February 3, 1913, and at the time of her death there was a balance due on said mortgage. After her death, her son-in-law, Charles S. Garrett, became administrator of her estate. Later on J. H. Alpin became administrator in succession of her estate.

In July, 1914, H. L. Dearing conveyed an undivided one-third of the land to W. G. Grace. In December, 1914, W. G. Grace and Annie Dearing Grace conveyed an undivided two-thirds of the land to R. A. Hilton. The consideration in the deed is "$ 1,000; * * * part of the above shall be an assumption of our pro rata due the Georgia State Savings Association."

In April, 1915, R. A. Hilton and wife conveyed a two-thirds interest in the land to J. W. Sanders. The conveyance recited that the "consideration was two-thirds of $ 1,400. The said two-thirds of $ 1,400 to be the assumption to the Georgia State Savings Association $ 748.01, cash, $ 652.99." In April, 1915, Irene Garrett conveyed to J. B. Sanders an undivided one-third of the land. The deed recited the consideration to be "one-third of $ 1,400. The said one-third of $ 1,400 to be the assumption to the Georgia State Savings Association $ 748.01 and cash $ 652.99." In August, 1915, J. W. Sanders and wife conveyed the land to C. H. Murphy for the consideration of $ 616.30. The record shows a number of payments on the obligation due appellant by Minnie I. McNalley, the last being on November 7, 1912. After her death her children made a number of payments, amounting to something over $ 350. The balance due appellant on January 7, 1916, was $ 734.52. Appellants did not probate their claim against the estate of Minnie I. McNalley after her death.

The chancellor found the issues in favor of appellees and dismissed the complaint of appellant for want of equity. The case is here on appeal.

OPINION

HART, J., (after stating the facts).

It is first contended by counsel for appellant that under section 733 of Kirby's Digest the deed from H. L. Dearing, Jr., conveyed to Minnie I. Dearing a fee simple title in the acre of land in El Dorado involved in this suit. The granting clause in the deed was to Minnie I. Dearing and the habendum clause was "to the said Minnie I. Dearing and her heirs by me of her body born or that may be hereafter to us born, in fee simple forever." They claim that the granting clause is to Mrs. Dearing and that there are no appropriate words limiting her estate and that therefore she acquired a fee simple title under the deed. They rely on the case of Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490, as being conclusive of their contention. We do not think that case sustains their contention. The clause upon which the rights of the parties in that case hinge is as follows:

"To have and to hold the said land unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if at her death there are no heirs of her body to take the said land, then and in that case to be divided and distributed according to the laws of descent and distribution in this State." There the limitation was to the heirs generally and Tennessee M. Carroll acquired a fee simple title.

In the present case the effect of the clause in the deed was not to create a limitation to the heirs of Minnie I. Dearing in general, but the limitation was to the heirs of her body and she took a life estate. The office of the habendum clause of a deed is to explain or define the extent of the grant, and is rejected only where there is a clear and irreconcilable repugnancy between the granting and habendum clauses in the deed.

In the construction of deeds it is the duty of a court to harmonize the different parts so as to give effect, if possible, to each part. The language...