Palmateer v. Reid

• Decision Date: 29 March 1927
• Citation: 254 P. 359,121 Or. 179
• Parties: PALMATEER ET AL. v. REID.
• Court: Oregon Supreme Court

254 P. 359

121 Or. 179

PALMATEER ET AL. v. REID.

Supreme Court of Oregon

March 29, 1927

In Banc.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by Charles Palmateer and others against W. R. Reid. From a decree for defendant, plaintiffs appeal. Affirmed.

Bean and Rand, JJ., dissenting.

Wm. M. Stone and Livy Stipp, both of Oregon City for appellants.

Philip Hammond, of Oregon City, for respondent.

BELT J.

This question involves the title to 80 acres of land in Clackamas county, the determination of which depends primarily upon the construction of a deed, executed January 31, 1872, by Garrett Palmateer and wife to their son, Charles W. Palmateer. The granting clause in the deed recites that the grantors have--

"bargained and sold and by these presents do grant sell, and convey unto the said party of the second part the following described real property, to wit" (description).

Then follows the habendum:

"To have and to hold the above-described premises unto the said party of the second part and his heirs forever, except that the said parties of the first part hereby reserve the use of 40 acres of the above-described premises * * * as long as the said parties of the first part shall live, provided, however, that the said party of the second part shall have no power to sell and convey said premises, but that at his death it is to descend to his heirs."

We have italicized that portion of the above instrument which has given rise to this controversy.

On March 6, 1889, Charles W. Palmateer and his wife, by warranty deed, purported to convey to John W. Covey a fee-simple estate and, by mesne conveyances, the property was acquired by the defendant on July 30, 1910. The plaintiffs, who are children of Charles W. Palmateer, assert that their father had only a life estate in the premises in question, and that at his death in 1926 their rights as remaindermen accrued. Defendant not only claims the record title, but also alleges that he and his predecessors in interest since 1889 have been in adverse possession of the land and have made valuable improvements thereon. Relative to defendant's alleged title by adverse possession, the plaintiffs answer that such is not in issue, since the statute of limitations did not begin to run against them until their cause of action accrued upon the death of their father in 1926.

Aside from the question of adverse possession, the matter for decision is whether the deed, executed in 1872 to Charles W Palmateer, conveyed a life estate or one in fee simple. If we look only to the words in the granting clause, it is clear that a fee-simple estate was conveyed, as the word "heirs" or other words of inheritance are not necessary to create or convey such an estate. Section 9847 Or. L. The first part of the habendum clause, "to have and to hold the above-described premises unto the said party of the second part and his heirs forever," strengthens the view that the grantee was vested with a fee-simple title. These words in the habendum do not conflict with the granting clause, but rather support it. However, in construing this deed we must look to the entire instrument, and not to separate parts thereof, to ascertain the intention of the parties. Where it is possible to do so, effect must be given to all of the language used by the grantor in expressing his intention as to the kind and character of estate which he intends to convey. As stated in Delvin on Deeds (3d Ed.) vol. 2, p. 1512:

"To effectuate the intention of the parties, the whole deed should be read, and, if possible, effect should be given to the habendum clause as well as to the clause containing the words of grant, as the object of the habendum clause is to enlarge, limit, or explain the estate conveyed. * * *"

Let us look to the remainder of the habendum clause, which states that the grantee "shall have no power to sell and convey said premises, but that at his death it is to descend to his heirs," and determine whether such will have the legal effect of cutting down or restricting a fee-simple estate. In this connection it is well to bear in mind the statutory provision (section 9847, Or. L.):

"* * * Any conveyance of any real estate hereafter executed shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms, or be necessarily implied in the terms of the grant."

It is also a rule of construction, for which no authorities need be cited, that deeds are construed more strongly against the grantor. Conditions defeating or limiting an estate are not viewed with favor. Of course, when the language used clearly and explicitly expresses a condition or defeasance, the court must give it effect unless it violates some well-established legal principle. The grantor having by clear and apt words created a fee-simple estate, his conclusion that the grantee would have no power to sell or convey the property is erroneous. It will not do for the grantor to create the highest estate known to the law, and then, in the same instrument, say to his grantee that he does not possess the right of disposition. The right of alienation is an attribute of ownership.

The direction that the estate conveyed would, upon the...