Johnson v. Barden

Decision Date14 May 1912
PartiesJOHNSON et al. v. BARDEN et ux.
CourtVermont Supreme Court

Appeal in Chancery, Rutland County; Fred M. Butler, Chancellor.

Action by Robert Johnson and others against Adams J. Barden and wife. From a decree for the orators, defendants appeal. Affirmed and remanded.

Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ.

M. C. Webber, for appellants.

T. W. Moloney and S. E. Everts, for appellees.

HASELTON, J. This is a suit in chancery brought here on an appeal by the defendants Adams J. Barden and his wife, Annette Barden, from a decree in favor of the orators.

May 1, 1900, Mabel V. Bush conveyed to the defendants, whose only child she was, a farm situated in the town of Wells. The farm consists of some 50 or 60 acres, and has on it a house and other buildings. Five or six acres of the farm are used for tillage, and the remainder is either pasture or woodland. The consideration expressed in the deed is $1, and by the granting clause the grantor does "give, grant, bargain, sell, convey, and confirm unto the said Adams J. Barden and wife Annette Barden heirs and assigns" the farm in question. The habendum reads: "To have and to hold the above granted premises with all the privileges and appurtenances thereof to the said Adams J. Barden and wife Annette Barden their lifetime, to them and their own use, benefit and behoof forever." A printed form was used by the draftsman and the printed words "heirs and assigns" were struck out from the habendum, and the words "their lifetime" were written in. In the covenant the words "heirs and assigns" are also struck out of the printed form. Then follows a clause which is wholly written in, and which reads: "The conditions of the above conveyance are such that at the death of both of the aforesaid Adams J. Barden and his wife Annette Barden then this deed becomes and is null and void, otherwise, to be and remain in full force and virtue."

This is an inartificial but unmistakable way of saying that the estate conveyed is a life estate only. At the time of this conveyance in 1900, the grantor, Mabel V. Bush, was a widow with three children. Later she married, and thereafter she and her husband deeded the farm to the orators, "subject to the life lease of Adams J. and Annette Barden in said real estate." The orators, Robert Johnson and another, brought this bill, claiming as reversioners, and that the defendants Adams Barden and his wife have only a life estate, and have committed and are threatening to commit waste. The defendants claim that by virtue of the deed given them by their daughter Mabel in 1900 they are the owners in fee simple of the land. Nothing can be more clear than that the intention of the grantor, as gathered from the whole deed from Mabel V. Bush to her father and mother, was to convey to them a life estate merely.

The intention of a written instrument gathered from all that is within its four corners ordinarily controls, but in the construction of deeds the common-law rule, which the defendants invoke here, was that effect will be given to the intention of the parties as drawn from the instrument, if such effect can be given without violating some rule of law; and it was a rule of the common law that, if the habendum or any later clause in a deed was repugnant to the granting clause, the granting clause would override the repugnant clause or clauses. This rule might well be thought to have been a rule of construction merely, and one to be invoked only to aid in determining the intention of the parties. But it was exalted into a rule of positive law. As illustrations of this rule, if a grant was to one and his heirs, and the habendum was to the heirs of his body, the habendum was given force because it did but explain what heirs were intended in the granting clause; but if a grant was to one and his heirs and the habendum or a later clause was to the grantee for his life, or the life of another, the habendum or later clause was considered void as being repugnant to the meaning conveyed by the words "his heirs" as previously used. The reason commonly given for this hard and fast rule was that one could not be allowed by subsequent limitations to defeat his own grant. But this was no reason; for there was no grant until the instrument was completed and executed, and all parts of the instrument spoke together. Another and more plausible reason was that the rule conduced to certainty and security; but this reason is no better than the other, as has been demonstrated in the construction of wills, where the expressed intention of the testator is always controlling, and where technical rules are resorted to only for the aid they may give in arriving at such intention, and where the security of testators in the disposition of their property and the stability of testaments rests upon the pre-eminent rule that the expressed intention shall govern. We first consider this case upon the assumption that the rules of the common law, which could find application to the deed in question, remain in full force in this state.

By the common law it is not the word "heirs" alone which makes an estate of inheritance, but the word "heirs" accompanied with a pronoun which shows its application, for, said Littleton, these words "his heirs" only make an estate of inheritance. Commenting upon this passage of Littleton, Coke says "that every word is worthy of observation," and that if a man grant land unto two and heirs, omitting the pronoun, the grantees have but an estate for life on account of the uncertainty; and he goes on to remark that while it is said that if land be granted to one man and heirs, omitting the pronoun, a fee simple passes, it is, nevertheless, safe to follow Littleton. So Coke gives no sanction to the saying that in the case of a deed to one the word "heirs," unaccompanied by a pronoun to indicate whose heirs, is sufficient to convey a fee simple. Coke did not care to give currency to the doctrine that a deed to one and "heirs" without the use of a pronoun would convey a fee simple by saying who said so, but he doubtless referred to what Sergeant Saunders, Edward, not Edmund, had recently said as counsel in the case of Colthirst v. Benjushin, 1 Plowden, 21, 28. For the Sergeant had there claimed that to be the doctrine, and it came to be unquestioned. In Shepard's Touchstone it is said that, if a grant be made to one and "heirs" without a pronoun, a fee simple passes, but that if a grant be to two and "heirs," without the appropriate pronoun, an estate for life only will pass for want of certainty as to whose heirs are intended. *Page 101. The same law is laid down in Comyn's Digest, and by Cruise in his Digest of the Law of Real Property. Com. Dig. Estates, A. 2; 4 Cruise Dig. Greenl. Ed. tit. 32, c. 22, § 3, b. 2, p. 657.

Here the grantor struck out the words "heirs and assigns" wherever they occurred in the printed form used, except in the granting clause; and there, while she omitted to strike them out, apparently from oversight, they do not, according to the rule of the common law which we have reviewed, make the grant one of inheritance, for the grant is to two, and no pronoun is inserted before the word "heirs." True, the two grantees here are husband and wife, considered as one person at common law, and a deed to them jointly created a peculiar estate, neither a tenancy in common nor a joint tenancy, but an estate by entirety such that each was deemed to be seised of the whole and to own the whole. Co. Litt. 187; Corinth v. Emery, 63 Vt. 505, 22 Atl. 618, 25 Am. St. Rep. 780; Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340. But in case of a deed to husband and wife the heritors may be "their" heirs or "his" heirs or "her" heirs. Davis v. Davis, 30 Vt. 440; Litt. Tenures, §§ 285, 26, 27, 28. This being so, if these refinements are pursued, it might well be claimed that at common law a deed to husband and wife and "heirs," without more, would convey a life estate only for want of certainty as to whose heirs were intended. We have not observed how precisely such a case was treated, if it was treated, and we have made no extensive investigation of the matter, for we do not find it necessary to rest the decision of this case upon the curious refinements of feudal law, in disregard of the actual and expressed intention of the parties.

Mention is made in argument of the fact that, although the grantor struck out the words "heirs and assigns" and inserted the words "their lifetime" after the names of the grantees in the habendum, she left standing after the words "to them" the words "and their own use, benefit and behoof forever." But the word "forever" was well enough allowed to stand, for it may well be used in the grant of an estate for life. Practically the whole law which we have discussed is condensed into a few lines by Littleton, where he says in his concise manner: "If a man would purchase lands or tenements in fee simple, it behooveth him to have these words in his purchase, To have and to hold to him and to his heirs; for these words (his heirs) made the estate of inheritance. For if a man purchase lands by these words, To have and to hold to him forever, or by these words, To have and to hold to him and his assigns forever; in these two cases he hath but an estate for term of life, for that there lack these words, 'his heirs,' which words only make an estate of inheritance in all feoffments and grants." Litt. Tenures, § 1. It is worth observing that Littleton makes it the proper office of the habendum to define the quantity of the estate granted, and this long was its proper office, while the chief office of the premises was to describe the land; and so it came about that the clause describing the land and the land described are both spoken of as "premises." Nathaniel Chipman considered that many of the rules and maxims resulting from the system of feudal tenures were "full of...

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