McDougal v. Musgrave

• Decision Date: 22 April 1899
• Citation: McDougal v. Musgrave, 46 W.Va. 509, 33 S.E. 281 (W. Va. 1899)
• Parties: McDOUGAL v. MUSGRAVE.
• Court: West Virginia Supreme Court

33 S.E. 281

46 W.Va. 509

McDOUGAL v. MUSGRAVE.

Supreme Court of Appeals of West Virginia.

April 22, 1899

Submitted February 4, 1899

Syllabus by the Court.

1. Where a party conveys a lot of land, for valuable consideration, to another, describing it, and concluding the deed with the following clause: "To have and to hold said real estate and premises with all the right, title, and interest of the said M. unto the said T. M., his heirs and assigns, forever. But the said M. expressly reserves to herself a life estate in and to the above-described real estate,"--said last clause will not be regarded as repugnant and void, and M. will thereby reserve a life estate therein.

2. In an action of ejectment, a deed of this character should be so construed as to arrive at the true intent of the grantor and grantee, and in so doing the whole of the deed and all its parts should be considered together.

3. Where a life tenant and the remainder-man are in possession of real estate which is assessed in the name of the remainder-man, and the taxes are paid by him, the estate of said life tenant will not be forfeited to the state by reason of his failure to have said life estate assessed on the land books, or to pay the taxes thereon.

Error to circuit court, Ritchie county; R. H. Freer, Judge.

Action by Mary M. McDougal against Charles A. Musgrave. Judgment for plaintiff. Defendant brings error. Modified and affirmed.

Robinson & Pierpoint and J. Willis Fidler, for plaintiff in error.

P. W Morris, for defendant in error.

ENGLISH J.

On the 26th of February, 1881, Mary M. McDougal conveyed to T. T McDougal, of Ritchie county, W. Va., a certain lot in the town of Harrisville, in said county, known as "Lot No. 6," in consideration of the sum of $106 the habendum of said deed being in the following words: "To have and to hold said real estate and premises, with all the right, title, and interest of the said Mary M. McDougal, unto the said T. T. McDougal, his heirs and assigns, forever;" and immediately thereafter the deed contains these words: "But the said Mary M. McDougal expressly reserves to herself a life interest in and to the above-described real estate." On January 26, 1891, the said McDougal conveyed the same lot to Charles A. Musgrave, which deed concluded thus: "But it is expressly understood by and between the parties that the said Thomas F. McDougal reserves for his mother her life interest in and to the premises hereby conveyed, and the parties of the first part hereby covenant and agree to warrant generally the title to the property hereby conveyed." It appears that said Mary M. McDougal and Charles A. Musgrave (who was her son-in-law) lived together on this lot No. 68 for some years, when she left the premises, and on the 1st day of May, 1897, instituted an action of ejectment against the said Charles A. Musgrave, which was tried by a jury on November 2, 1897, and resulted in a verdict for the plaintiff. The defendant, Charles A. Musgrave, moved the court to set aside the verdict, and grant him a new trial, because the same was contrary to the law and the evidence, which motion was overruled, and judgment rendered on the verdict. The defendant objected and excepted, and obtained this writ of error.

The first assignment of error claims that the court erred in overruling the defendant's demurrer to the plaintiff's declaration, and raises the question as to whether the declaration sufficiently alleges the estate of the plaintiff under section 9, c. 90, Code (page 700), which reads as follows: "The plaintiff shall also state whether he claims in fee, or for his life, or for the life of another, or for years, specifying such lives or the duration of such term, and when he claims an undivided share or interest, he shall state the same." The language used in the declaration is: "The said plaintiff was possessed in a life interest of a certain tract of land, to have and to hold the said tract of land for the term of said plaintiff's natural life, which life interest is not yet terminated, said plaintiff being yet living." Now, while it is true that the plaintiff might have stated the character of the estate claimed in fewer words, I think the declaration is sufficient to show that the plaintiff claimed an estate for her life in the premises, and the demurrer was properly overruled.

The plaintiff in error claims that the court erred to his prejudice in giving several instructions to the jury at the instance of the plaintiff and in refusing others that were prayed for by him. When our attention is directed to these questions, it is at once apparent that the main question upon which this case turns depends upon a proper construction of the deed from the plaintiff, Mary M. McDougal, to T. T. McDougal, and whether by that deed she parted with her entire estate in the lot of land in controversy, or reserved a life estate therein. If the latter, then T. T. McDougal, by his deed to the defendant, Musgrave, could convey no other or better title than was vested in himself, but in said last-mentioned deed McDougal also reserves for his mother her life interest in the premises. This, however, was not necessary if such life estate was reserved in said deed to T. T. McDougal, for, as we have stated above, his conveyance would be subject to the life estate.

It is claimed by counsel for the plaintiff in error that the plaintiff in her deed to T. T. McDougal attempted in the habendum clause, after conveying all of her interest in said lot in the granting clause, to reserve to herself a life interest in and to said lot, which reservation found in the habendum is repugnant to the premises, and is therefore void. I regard the conclusion of this deed as an exception or reservation of the life estate in the grantor. I, however, do not regard this reservation as being contained in the habendum. The language of that is: "To have and to hold said real estate and premises, with all the right, title, and interest of the said Mary M. McDougal, unto the said T. T McDougal, his heirs and assigns, forever." At this point the habendum evidently concludes, and what remains is called the "reddendum," in reference to which Devlin on Deeds (volume 1, § 221) says: "The clause of reddendum generally follows the habendum, and is used when anything is to be reserved out of the property granted." Strictly speaking, this final clause would be regarded as an exception. In the section last referred to, Devlin says: "There is a distinction between an exception and a reservation. By the former the grantor withdraws from the operation of the conveyance which is in existence, and included...