Land v. Land

• Decision Date: 10 November 1916
• Citation: 189 S.W. 1,172 Ky. 145
• Parties: LAND v. LAND ET AL.
• Court: Kentucky Court of Appeals

189 S.W. 1

172 Ky. 145

LAND v. LAND ET AL.

Court of Appeals of Kentucky.

November 10, 1916

Appeal from Circuit Court, Fayette County.

Action by Eugene Land and others against Edgar P. Land. From a judgment for plaintiffs, defendant appeals. Judgment affirmed.

Chas F. Exum, of Lexington, for appellant.

R. L Northcutt and Geo. S. Shanklin, both of Lexington, for appellees.

MILLER C.J.

This case presents this question: What effect, if any, is to be given other language in a deed which attempts to cut down an estate conveyed by the granting clause?

By their deed dated December 21, 1888, L. M. Land and Sarah J Land, his wife, conveyed to M. Belle Land, the wife of Eugene Land, a farm in Fayette county for the consideration of the grantee's promissory note for $3,800, payable 12 months thereafter. The granting clause reads as follows:

"The parties of the first part do hereby sell and convey unto the party of the second part, her heirs and assigns, the following described real property, to wit."

The habendum clause of the deed reads as follows:

"To have and to hold said property unto the party of the second part, her heirs and assigns forever. And said parties of the first part hereby release all their right, title and interest in said property including the homestead exemption allowed by law, and covenant to warrant generally the property hereby conveyed. It is understood and agreed, however, by this conveyance that said described property is to revert to the heirs at law of Eugene Land, at the death of M. Belle Land, his wife."

Subsequently, M. Belle Land and Eugene Land, her husband, conveyed seven acres of the tract in question to Hettie L. Spicer. Again, by their deed of September 30, 1915, M. Belle Land and Eugene Land, her husband, conveyed the unsold portion of the tract to L. M. Land in consideration of one dollar and the agreement of L. M. Land to reconvey the land to Eugene Land. L. M. Land complied with his covenant, by executing a deed of the same date, whereby he reconveyed the land to Eugene Land in fee.

The appellant, Edgar P. Land, an adult, is the only child and descendant of Eugene Land and M. Belle Land, his wife. On December 30, 1915, Eugene Land, Hettie L. Spicer, and H. S. Spicer, her husband, filed this action against Edgar P. Land, setting forth the facts above recited, and further alleging that Edgar P. Land is claiming that his mother, M. Belle Land, acquired only a life estate under the deed of December 21, 1888, and that said land would, upon her death, pass to him in fee simple, in the event he survived his mother. The plaintiffs asked the court to construe the deed of December 21, 1888, from L. M. Land and Sarah J. Land, his wife, to M. Belle Land, and to adjudge and determine just what rights the plaintiffs, Hettie L. Spicer and Eugene Land, had acquired under their subsequent deeds from M. Belle Land. The circuit court adjudged that M. Belle Land took a fee-simple title, and, consequently, that Hettie L. Spicer and Eugene Land held their respective tracts under a like tenure, and that Edgar P. Land had no interest or estate whatever therein. From that judgment Edgar P. Land prosecutes this appeal.

The rule is that where, by a deed, a fee simple is granted, and the deed as a whole shows an intention to vest the grantee with a fee, an attempted limitation upon the fee will be disregarded. This rule is based upon the principle that a grantor cannot destroy his own grant, however mach he may modify it or load it with conditions.

But in all cases the effect of the deed turns upon its proper construction when read as a whole; and, if upon the whole instrument it appears that the grantor's intention was to vest a less estate than a fee in the grantee, that intention will be carried into effect; for it, like other instruments, must be construed according to the intention of the parties where that intention is sufficiently expressed in the instrument. Henderson v. Mack, 82 Ky. 380; Wilson v. Moore, 146 Ky. 679, 143 S.W. 431; Bain v. Tye, 160 Ky. 411, 169 S.W. 843.

Appellant insists that the deed clearly expresses the intention of L. M. Land and wife to grant a life estate, only, to M. Belle Land, and to vest the remainder in fee simple in their only child, the appellant Edgar P. Land. On the other hand, appellees insist that by both the granting clause and the habendum clause of the deed L. M. Land and his wife parted with their entire interest in the property, and that the subsequent attempt to create a reversion in favor of the heirs at law of Eugene Land, who was not a grantee in the deed, is entirely inconsistent with both the granting clause and the habendum clause of the deed, and therefore ineffectual for any purpose.

Attention is called to the fact that M. Belle Land is the only party named as grantee; that the estate is not conveyed to M. Belle Land and the...