Lott v. Braham.

• Citation: 92 W.Va. 317
• Parties: Mary Braham lott et al v. Kate Braham et al.
• Decision Date: 14 November 1922
• Court: Supreme Court of West Virginia

92 W.Va. 317

Mary Braham lott et al

v.Kate Braham et al.

Supreme Court of Appeals of West Virginia.

Submitted October 31, 1922,

Decided November 14, 1922.

1. Deeds Habendum, Clause Will Define Estate Granted When Such is Not Mentioned in Granting Clause.

If, by the granting clause of a deed, land be conveyed to a named person, without mention of the estate intended to be vested in him, the habendum clause therein, if any, will define the estate granted. (p. 320).

2. Same In absence of Granting or Habendum Clause Defining Estate Granted Grantee Takes Fee Simple by Legal Implication.

If there be no habendum in such a deed, the law determines the estate it passes, and, under sec. 8, ch. 71 of the Code, the grantee takes an estate in fee simple absolute, by legal implication, (p. 320).

3. Same Habendum Clause Limiting Estate Granted Governs in Absence of Definition of Estate in Granting Clause.

A deed by which land is granted to a person by name, without definition of his estate, in the granting clause, and which contains an habendum clause limiting the estate to him for his natural life and to other persons in remainder in fee, vests a life estate in him and the remainder in fee simple absolute in such other persons, (p. 321).

Error to Circuit Court, Wood County.

Action by Mary Braham Lott and others against Kate Braham and others. Judgment for plaintiffs, and defendants bring error.

Affirmed.

William Beard, for plaintiff below, defendant in error. Bobert B. McDougal and G. N. Matheney, for defendant below, plaintiffs in error.

poffenbarger, president:

The writ of error in this case goes to a judgment for the plaintiff in an action of ejectment instituted for recovery of the possessison of a small farm, containing 52.95 acres, composed of two tracts, one containing 46 acres and the other 6.95 acres. The property in question is the ancestral home of the plaintiff, and, strange as it may seem, the defendants are her mother, two brothers and a sister. The question of title turns upon the construction of a certain deed.

The formal parties to that deed, which bears date August 13, 1892, were Solomon Braham and his wife, grandparents of the plaintiff, parties of the first part, and Benjamin Braham, her father, party of the second part. For and in consideration of services rendered to the grantors by the grantee and estimated to be worth $1,680.00, a covenant on the part of the latter to support the former, during their natural lives, and payment to one Amanda Allen, of the sum of $25.00, within nine months after the death of the parties of the first part, the land was conveyed to Benjamin Braham, with covenants of general warranty. In the granting clause of the deed, there is no definition of the character or duration of the.estate intended to be vested in the grantee. The land with all the personal property of the grantors, was conveyed in general terms. If nothing else appeared in the deed, it would have passed to the grantee an estate in fee simple in the land. Code, ch. 71, sec. 8. There is an habendum clause in the deed, however, the terms of which may sufficiently indicate different intent on the part of the grantors. It reads as follows: "To have and to hold said Lot, Tract or parcel of Land and premises, together with all and singular the appurtenances thereto belonging unto the said Benjamin Braham his Lifetime & to Edward Allen Son of Major Allen & Mary Braham daughter of Benjamin Braham her heirs and assigns forever." The plaintiff is the Mary Braham mentioned in this clause. She claims not only one-half of the land, by virtue thereof, but also the other half, by purchase mediately from Edward Allen. In October, 1914. Allen and his wife conveyed their alleged interest to James Burch, who, by deed dated March 23, 1920, conveyed it to the plaintiff, Mary Braham Lott.

The defense is predicated upon the theory of a conveyance in fee simple to Benjamin Braham and descent thereof to the plaintiff and her brothers and sister, subject to the dower right of their mother. On the trial, the three deeds just mentioned were introduced by the plaintiff and the relationship of the parties shown by oral evidence. By an instruction given to the jury, the trial court interpreted the deed from Solomon Braham and his wife to Benjamin Braham, as having vested in Benjamin an estate for his life and in Edward Allen and Mary Braham, the remainder in fee. By another instruction, the jury were told that the deeds from Edward Allen and wife to James Burch and from Burch to the plaintiff were valid and effective to pass the interest of Edward Allen and wife in the land, to the plaintiff. Exceptions were taken by the defendants to the giving of these two instructions and another limiting the possible verdicts to two, one in favor of the plaintiff, giving her an estate in fee simple, and the other for the defendants. In conformity with the court's construction of the deeds, the jury returned a verdict for the plaintiff and judgment was entered thereon, after the overruling of a motion to set it aside.

It is hardly necessary to observe that the construction of the Braham deed calls for consideration of only two things, the granting clause or premises and the habendum. As has been stated, the premises grant the land to Benjamin Braham, but do not mention or define the estate he is to have in it. When a grant is made in that way, it is the office of the habendum, if there be one, to determine what estate or interest is granted. Freicdenberger Oil Co. v. Simmons, 75 W. Va. 337, 341; 2 Minors Institute, 629; 2 Lomax's Dig. 215. If the premises fail to give the name of the grantee, this may be supplied by'the habendum, because there is a grant in indefinite terms, which may be defined and made certain by the habendum. Freicdenberger Oil Co. v. Simmons, cited. In that case, it is said that the habendum can add nothing that is outside of, or beyond, the terms used in the premises, and also that it cannot take away anything specifically conferred by the granting clause. If a deed grant land to a certain person, without any indication of the estate he is to fake, and there is no habendum defining the estate, the law determines what it is, and, under our statute, to which reference has been made, it would be a fee simple. At the common law, such a deed would pass an estate for the life of the grantee. If, on the other hand, a deed not only grants the land or other property, but defines the estate therein by the premises or granting clause, any contradictory matter or terms found in the habendum, which would cut down or destroy that estate, in whole or in part, must be rejected. This distinction was stated by Abbott, Chief Justice in Goodiitle v. Gibbs, 5 B. & C, 709, 108 Eng. Reprint, 264, as followsr "If no estate be mentioned in the premises, the grantee will take nothing under that part of the deed, except by implication and presumption of law, but if an...