Glasgow v. Glasgow, 16617

• Citation: 221 S.C. 322,70 S.E.2d 432
• Decision Date: 08 April 1952
• Docket Number: No. 16617,16617
• Court: South Carolina Supreme Court
• Parties: GLASGOW v. GLASGOW.

Page 432

70 S.E.2d 432

221 S.C. 322

GLASGOW v. GLASGOW.

No. 16617.

Supreme Court of South Carolina.

April 8, 1952.

Richardson & Richardson, Conway, for appellant.

Suggs & McCutcheon, Conway, for respondent.

STUKES, Justice.

This lawsuit is between mother and son, in whom love of the land must outweigh every other natural instinct and sentiment. According to the complaint, their husband and father, respectively, conveyed by general warranty deed, dated and delivered March 8, 1943, two tracts aggregating 150 acres in Horry County, which he owned. The opening paragraph of the deed, which contains the granting clause, is here copied:

'Know all men by these presents, that I, Robert B. Glasgow, of the County of Horry in the State aforesaid for and in consideration of the sum of Five ($5.00) Dollars and the love and affection which I bear for my son, Robert B. Glasgow, Jr., to me in hand paid at and before the sealing of these presents by Robert B. Glasgow, Jr., of Horry County, in the State aforesaid, (receipt whereof is hereby acknowledged) have granted, bargained, sold and released; and by these presents do grant, bargain, sell and release unto the said Robert B. Glasgow, Jr., his heirs and assigns forever, saving, excepting, and reserving unto the Grantor herein, Robert B. Glasgow, and Mrs. Elizabeth Glasgow, the use, occupancy, and possession of the property hereinafter described, for and during their natural lives and the natural life of each of them.'

The deed, which is thenceforward usual in form, thereafter contains in customary sequence: description of the land; regular habendum and general warranty clauses,--to Robert B. Glasgow, Jr., his heirs and assigns; attestation; execution by mark; probate; and renunciation of dower by the wife of the grantor, who is the plaintiff in this action.

The fourth paragraph of the complaint follows:

'That under and by virtue of the terms of the deed aforesaid, which also contains a covenant to stand seized to uses, the plaintiff is the owner of a life estate in the real property therein described, and that upon the death of the said Robert B. Glasgow (in 1946) she became, and now is, the sole life tenant of the premises with exclusive right to the possession thereof, with remainder in fee simple to the defendant. But the plaintiff further alleges that the defendant wrongfully and unlawfully denies her claim to a life estate under the deed aforesaid, and hence wrongfully and unlawfully withholds the possession of the premises from her.'

The prayer of the complaint is for declaratory judgment construing the deed favorably to plaintiff and for further appropriate relief.

Demurrer to the complaint was sustained and it was held that plaintiff, who is now appellant, does not have a life estate in the land for two principal reasons, and another which was stated but not discussed: First, it was said, because the reservation or exception of life estates to the grantor and his wife followed the granting of the fee simple title to the son which latter could not be cut down or qualified by superadded words, either in the granting clause or in the habendum. For this conclusion the following decisions were cited: Ex parte Yown, 17 S.C. 532; Glenn v. Jamison, 48 S.C. 316, 26 S.E. 677; Shealy v. Shealy, 120 S.C. 276, 113 S.E. 131; Antley v. Antley, 132 S.C. 306, 128 S.E. 31; Groce v. Southern Ry. Co., 164 S.C. 427, 162 S.E. 425; and Keels v. Crosswell, 180 S.C. 63, 185 S.E. 39. Wilson v. Poston, 129 S.C. 345, 123 S.E. 849, was also cited as authority for the conclusion that however plainly the intention of the grantor may be indicated, it cannot be allowed to contravene an established rule of construction.

Examination of the cited cases shows that they are not conclusive of this. The facts of each of them were quite different from that of the comparatively simple deed which is now under construction. They were concerned with attempted limitations or conditions upon the estates granted, not reservations or exceptions from the grants, as here. No further differentiation is required except that it may be pointed out that the Yown case is further distinguishable upon its very peculiar facts. The grantee, widow of the deceased intestate former owner, already owned by inheritance an undivided one-third interest in the property of which only one-sixth in value was conveyed to her by the other heirs in intended compliance with an antecedent family agreement for partition. The decision dealt mainly with a breach of condition by the other heirs, who were the grantors in the deed, whereby they forfeited remainders under its terms. The undoubted intention of the parties to the deed (expressed also in the prior agreement for partition) was effected by the court's construction. The latter also may be said of Wilson v. Poston which, in so far as it is applicable, is authority for reversal of the order which it was mistakenly cited to sustain.

No case was cited involving a deed of comparably simple form to that in hand, which is merely the reservation or exception of life estates, and that in the forepart of the deed--the premises or granting clause. The latter feature is of importance as is seen by reference to some of the decisions which have been cited and many others in our reports. See S. C. cases in 12 South Eastern Digest, Deeds, k97, entitled, 'In case of conflict between two provisions in a deed, the last should yield to the first, and the first be given its full effect.' See also, 16 Am.Jur. 566, et seq., Deeds, secs. 232, 234; and 26 C.J.S., Deeds, § 128, page 429.

It may be fairly said that it is difficult to conceive how the grantor's manifest intention to make the reservation or exception could have been more plainly demonstrated than by the clear statement of it in the granting clause of the deed. Perhaps it may have been again added after either the habendum or the warranty, or both, but it would have been needless repetition, in view of the cited rules of construction. The draftsman evidently knew the importance of putting it where he did--in the granting clause.

Besides the importance of placing it first in the deed, which has been mentioned, if the deed were self-contradictory in meaning, as conceived by the trial court, there would also be called into play the long-settled and frequently applied further rule of construction that in case of conflict between granting clause and habendum, the former prevails. There is a series of annotations upon the subject in 84 A.L.R. 1054, 111 A.L.R. 1078 and 131 A.L.R. 1239 which follow the comment-rule first stated in 84 A.L.R. 1054 that it is universally conceded that when the estates given in the granting clause and the habendum of a deed are so repugnant to each other as not to be susceptible of any reasonable reconciliation, the granting clause will control and the habendum will be rejected as void. Supporting cases from the courts of this State cited in the several annotations are: Porter v. Ingram, Harp. 492; Ingram v. Porter, 4 McCord, 198; Shealy v. Shealy, supra, 120 S.C. 276, 113 S.E. 131; Rhodes v. Black, 170 S.C. 193, 170 S.E. 158; Hewitt v. Hewitt, 187 S.C. 86, 196 S.E. 541; and Sims v. Clayton, 193 S.C. 98, 7 S.E.2d 724.

What has been said with respect to the propriety of the placement of the reservation in the instant deed is supported generally by pertinent decisions in other jurisdictions which are cited in the footnotes to the following text quotations. The first is from 16 Am.Jur. 612, Deeds, sec. 305:

'Anciently, exceptions seem to have been inserted in the premises of a deed just before the habendum clause. It is not, however, necessary that exceptions appear in this position. It is said that a reservation may be inserted in any part of the deed. The view has been taken that the position ordinarily occupied by the reddendum clause may be used to effect a reservation of an estate in land previously granted, or it may be used for excepting a severable thing from the premises granted, and that in whatever part the clause appears, the deed will be construed to give effect thereto, if possible, as well as to the granting clause. However, there is authority to the effect that where no exception is made in the granting clause of a deed, an exception in the habendum clause is ineffective.'

It is said more briefly and pointedly in 26 C.J.S., Deeds, § 138(a), page 444, in part, as follows: 'Where not repugnant to the grant, a reservation or exception may appear in any part of the deed. However, the reservation or exception must be to the grant, not to some other provision in the deed; * * *.'

Cases from this court of controlling similarity to this are Cribb v. Rogers, 12 S.C. 564, and Senterfeit v. Shealey, 71 S.C. 259, 51 S.E. 142. In the former, the deed under construction was as follows: 'I, Dempsey Cribb, of the county and state aforesaid, for and in consideration of the love, good-will and natural affection which I have and bear to Margaret Lewis (stepdaughter of the grantor) have given, granted and conveyed, and by these presents do give, grant, release, convey and deliver to the said Margaret Lewis a certain tract, piece or parcel of land, containing four hundred and sixty-seven acres, more or less, reserving for myself the use of said lands during my natural life only, said lands being situated,' etc. Then follows the description of the lands conveyed 'to the said Margaret Lewis, her heirs and assigns forever.' The deed concludes with a general covenant of warranty, and was duly executed and attested. The court held that the deed validly reserved a life estate to the grantor, and said: 'The only question affecting the validity and operation of the deed, as sufficient to pass a fee in the lands conveyed, arises out of the words, 'reserving for myself the use of said lands during my natural life only.' The fact that the usufruct is separated from the fee is not inconsistent with the vesting of the...