Keith v. Chastain
| Decision Date | 11 December 1923 |
| Docket Number | 3653. |
| Citation | 121 S.E. 233,157 Ga. 1 |
| Parties | KEITH ET AL. v. CHASTAIN ET AL. |
| Court | Georgia Supreme Court |
Rehearing Denied Jan. 28, 1924.
Syllabus by the Court.
In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. If that intention is plain from the language of the deed as a whole, and the intention contravenes no rule of law, it should be given effect regardless of mere literal repugnancies in different clauses of the conveyance.
The word "children" is a word of purchase and not of limitation, and a conveyance to a husband and wife and "to their children" carries title in fee simple to such "children" of the husband and wife as are in esse at the time of the conveyance, as tenants in common with their parents, even though such "children" are not designated by their names.
It follows that where a father in the granting clause of a deed conveyed to his daughter and her husband certain described premises, therein reciting that by far the greater portion of the consideration had been given to the parties of the second part as his children, but in the habendum et tenendum declared the deed to be for the use, benefit, and behoof forever in fee simple, "to them and to their children," there was manifested a plain intention on the part of the grantor to place his grandchildren, then in esse on the same footing with his daughter and son-in-law, which cannot be disregarded under the well-settled ruling announced in the first headnote.
Error from Superior Court, Forsyth County; D. W. Blair, Judge.
Proceeding between S. O. Keith and others and Claud Chastain and others. Judgment for the latter, and former brings error. Reversed.
H. H Perry and J. G. Collins, both of Gainesville, for plaintiffs in error.
Charters, Wheeler & Lilly, of Gainesville, for defendants in error.
RUSSELL, C.J. (after stating the facts as above).
It appears in the decree that it was agreed by all parties that their respective interests depended on the construction of the deed from Samuel Stephens, and the determination of the question whether Andrew L. Keith and his wife, Eliza Ann H. Keith, alone took title to the land conveyed, or whether those children of Andrew L. Keith and his wife, Eliza Ann H. Keith, which were in esse, also took title in common with their parents. It is insisted by learned counsel for the defendant in error that only Andrew L. Keith and Eliza Ann H. Keith are mentioned as parties of the second part, and that the grant is to the parties of the second part. Likewise that the warranty is to the parties of the second part. It is insisted that Andrew L. Keith and Eliza Ann H. Keith took the property in fee simple--an undivided one-half each; and that there are certain fixed principles, such as that, where there are repugnant clauses in a deed, the first must prevail; that the grantees must be certain and definite; and that the office of the habendum clause is to define the estate which the grantee has in the property granted; and that it cannot be repugnant to the estate granted in the premises. Blackstone is cited (book B, p. 241) to support the proposition that, after an estate in fee has been conveyed in the grant, it cannot afterwards be taken away or divested in the habendum clause. As we understand it, the contention of the defendants in error is that the deed from Samuel Stephens passed the estate in fee simple to Andrew L. and Eliza Ann H. Keith of an undivided one-half each, and that the grantor could not divest that estate by the habendum clause, even if he had used apt words, and had named the persons composing the heirs. To support this proposition are cited 18 C.J. 175; Lane v. Cordell, 147 Ga. 101, 92 S.E. 887; Pace v. Forman, 148 Ga. 507, 97 S.E. 70; Parker v. Smith, 140 Ga. 789, 80 S.E. 12; Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554; Whatley v. Barker, 79 Ga. 790, 4 S.E. 387; Huie v. McDaniel, 105 Ga. 319, 31 S.E. 189; Henderson v. Sawyer, 99 Ga. 234, 25 S.E. 312. We think the court erred in sustaining this contention; and that these children of Mr. and Mrs. Keith, who were in life on December 22, 1875, took equally with their parents a title in fee simple to the land of which the tract now in question is admitted to be a part.
Also:
"The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part." Section 4268 (3).
The requirement that the intention of the parties should be given effect in the construction of a contract is so fundamental in this state that the foregoing Code sections cannot be overlooked, despite the old rule that later parts of a deed, if conflicting with earlier clauses, must yield thereto, and despite a mere apparent conflict which is easily reconciled when the instrument is considered as a whole. It is true that in the premises Andrew L. Keith and his wife, the daughter of the grantor, are alone mentioned as parties of the second part, and it is true that these parties of the second part are alone mentioned in the warranty; but when it appears from the recital in the deed itself that the tract of land, comprising a number of land lots, was valued at $2,500, of which only $150 was paid and $2,350 given because the grantor held them for his children, and then the grantor uses the statement in the habendum clause, "to have and to hold to them and to their children," it is plainly to be seen that the grantor had in mind his grandchildren, and that he intended to modify the former statement in the premises by an amplifying and identifying grant in the habendum.
If we construe the deed as a whole, as is required by section 4187 of the...
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