Penienskice v. Short

• Decision Date: 05 October 1937
• Citation: 38 Del. 526,194 A. 409
• Court: Delaware Superior Court
• Parties: ROSE D. PENIENSKICE v. SALLIE T. SHORT

194 A. 409

38 Del. 526

ROSE D. PENIENSKICE v. SALLIE T. SHORT

Superior Court of Delaware, Sussex County

October 5, 1937

Superior Court for Sussex County, No. 28, June Term, 1937.

Amicable action on case stated.

This was an amicable action to recover a deposit made in connection with an agreement for the sale of real estate. The defendant, by the agreement, undertook to convey a marketable fee simple title to the premises mentioned and especially "all the right, title and claim whatsoever in law and equity held by the aforesaid Caroline Wedderburn Gates (a former owner) in said lots." The land had been sold by John S. Isaacs, former County Treasurer and Receiver of Taxes for Sussex County, as the property of Caroline Wedderburn Gates who, in the agreement is conceded to have had a fee simple title. The purchaser at the tax sale was William J Mustard, a predecessor in title of the defendant. The County Treasurer and Receiver of Taxes made a deed to Mustard, which deed recited the regularity of all proceedings and is included in the statement of facts. This deed, however, both in the granting clause and in the habendum conveyed the property to William J. Mustard "its successors and assigns" and the usual words "his heirs and assigns" were entirely omitted.

The whole controversy arose from this language of the deed and its validity is the sole question considered by the Court.

Judgment entered for defendant.

Tunnell and Tunnell for plaintiff.

Houston Wilson for defendant.

RODNEY J., sitting.

OPINION

RODNEY, J.

It may readily be conceded that the word "heirs" was a necessary word at common law in a conveyance, inter vivos, between individuals in order to grant a fee simple title. Statutes of most states have changed this rule and some slight consideration will later be given to the pertinent Delaware statute. This modification of the Common Rule is but an application of the almost universal modern rule that in the construction of deeds, like all other instruments, the real intention of the parties is to be sought and carried out unless such intention is in conflict with some fixed canon of construction, settled rule of property, or is repugnant to the terms of the grant. 8 R. C. L. 1037.

It has been said that the estate intended to be conveyed is the main thing and the conveyance is the instrument by which the transfer is effected (M'Williams v. Nisly, 2 Serg. & R. [Pa.] 507, 7 Am. Dec. 654), and where the intention of the grantor clearly appears from the face of the deed effect must be given thereto, however unusual the form of the deed unless the repugnancy is such that the intention cannot be carried out.

In the construction of the deed, presently involved, there are three aspects in which it should be considered (1) as conveying no estate whatever and being an entire nullity (2) as conveying merely a life estate in William J. Mustard and (3) as conveying a fee simple interest notwithstanding the lack of appropriate words of inheritance.

(1) Every deed, otherwise valid, will be considered to have intended to convey some estate of some nature (Pelletier v. Langlois, 130 Me. 486, 157 A. 577) and since all proceedings are recited and admitted to have been regular it is difficult to see how the deed could be so construed as to show an intent to convey no interest whatever.

The (2) and (3) aspects of the deed are closely connected and will be considered together. Counsel for the plaintiff argues that a conveyance to "A, his successors and assigns" was a recognized method of conveying a life estate at common law and that the present deed should be construed as evidencing a like intention. I do not so understand the authorities. At common law the word "heirs" was necessary to carry a fee simple and with this word "heirs" absent the estate was construed as a life estate because that was the largest estate that could be granted without proper words of inheritance. A deed at common law to "A, his successors and assigns" conveyed merely a life estate not because that was a recognized method of such conveyances but the life estate was the largest estate that could be vested in the absence of the word "heirs."

It has been determined in Delaware (Betts v. Dick, 1 Penne. 268, 40 A. 185) that a purchaser of land at a tax sale does not take title from the confirmation of the sale by the Court, but does take title from the deed made pursuant to the statute. This, then, brings me to a consideration of the statute (Vol. 28, Chap. 82, p. 227, as amended; Rev. Code 1935, §§ 1429-1460) under which these proceedings were had and the deed made. The statute expressly states (Rev. Code 1935, § 1445) "the Receiver of Taxes and County Treasurer making the sale shall make a deed to the purchaser which shall convey the title of the taxable." This does not mean that any deed made by the Collector shall be construed to pass the title of the taxable, but rather that a proper deed from the Collector shall pass such title. The deed from the Collector is necessary to vest the title in the purchaser but no estate was in the Collector and he is merely the conduit, named by the Legislature, through whom the title passes to the purchaser. The Legislature could have named some other agency...