Simpson v. Brown, (No. 5218.)

• Decision Date: 15 July 1926
• Docket Number: (No. 5218.)
• Citation: 162 Ga. 529,134 S.E. 161
• Parties: SIMPSON et al. v. BROWN et al.
• Court: Georgia Supreme Court

162 Ga. 529

134 S.E. 161

SIMPSON et al.

v.BROWN et al.

(No. 5218.)

Supreme Court of Georgia.

July 15, 1926.

(Syllabus by the Court.)

Error from Superior Court, Hall County; J. B. Jones, Judge.

Suit by Sallie E. Simpson and others against Delia Brown and others. Judgment for defendants, and plaintiffs bring error. Reversed.

W. N. Oliver and H. H. Perry, both of Gainesville, for plaintiffs in error.

E. D. Kenyon, W. V. Lance, Wm. P. Whelchel, and A. C. Wheeler, all of Gainesville, for defendants in error.

HINES. J. Sallie Simpson et al. filed an equitable petition for partition of land against Delia Brown et al. The plaintiffs claim title to the land as heirs at law of Nevil Bennett. Delia Brown claims title thereto under a deed from Nevil Bennett to his wife, Susan P. Bennett. This deed is dated January 19, 1899, and is "between Nevil Bennett and his wife, Susan P. Bennett." The granting clause is as follows:

"Nevil Bennett, for and in consideration of the natural love and affection he has for his said wife, Susan F. Bennett, hereby grants, gives, and conveys unto her, the said Susan F. Bennett, during her natural life, " certain described land.

The habendum clause is as follows:

"To have and to hold the said above granted and described property * * * to the only proper use, benefit, and behoof of the said party of the second part, his heirs, executors, administrators, and assigns, in fee simple."

The habendum is immediately followed by the following covenant of warranty.

"And the said party of the first part the bargained property above described unto the said party of the second part, her heirs, executors, administrators, and assigns, against the said party of the first part, his heirs, executors, administrators, and assigns and against all and every other person or persons, shall and will and does hereby warrant and forever defend."

The trial judge held that said deed vested a life estate in Susan F. Bennett, and, after her death, an estate in fee simple in her heirs, and directed a verdict in her favor. To this judgment the plaintiffs excepted. So the rights and title of the parties depend upon the proper construction of the foregoing deed.

1. The cardinal rule for the construction of deeds is to ascertain the intention of the parties. Huie v. McDaniel, 105 Ga. 319, 31 S. E. 189; Keith v. Chastain, 157 Ga. 1, 121 S. E. 233.

"If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction." Civil Code 1910, § 4206.

The whole instrument is to be construed together, so as to give effect, if possible, to the entire deed, and in this way ascertain from its terms the real intention of the parties. Central R. & Banking Co. v. City of Macon, 43 Ga. 605, 647; Bray v. McGinty, 94 Ga. 192, 21 S. E. 284; Rollins v. Davis, 96 Ga. 107, 109, 23 S. E. 392; Henderson v.' Sawyer, 99 Ga. 234, 25 S. E. 312; Huie v. McDaniel, supra; Baxter v. Mattox, 106 Ga. 344, 350, 32 S. E. 94. The law strives so hard to carry out the intention of the parties to the contract that it will never resort to the doctrine of repugnant clauses in a deed and declare the latter void, except in cases of absolute necessity. The doctrine of repugnant clauses is not favored. Maxwell v. Hoppie, 70 Ga. 152 (2); Bray v. McGinty, supra. If a deed can be read and applied to the subject-matter without necessarily giving inconsistent or irreconcilable meanings to thedifferent portions of it, this ought to be done. West v. Randle, 79 Ga. 28, 3 S. E. 454.

"The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part." Civil Code 1910, § 4208, par. 3.

"One of the most important rules in the construction of deeds is to so construe them that no part shall be rejected. The object of all construction is to ascertain the intent of the parties, and it must have been their intent to have some meaning in every part. It never could be a man's intention to contradict himself; therefore we should lean to such a construction as reconciles the different parts and reject the construction which leads to a contradiction." Goodtitle v. Gibbs, 14 Eng. Ruling cases, 779.

Furthermore, "estates and grants by implication are not favored." Civil Code 1910, § 4268, par. 7.

2. What is the proper construction of the deed involved in this case? We do not think it necessary to resort to the doctrine of inconsistent clauses in order to arrive at the true construction of this instrument. We cannot resort to this doctrine except in cases of absolute necessity, as we have shown above. In view of the rules of construction above set forth, we think this instrument grants to the wife an estate in this land during her natural life, with remainder to the heirs of the grantor after the termination of the life estate. To give this remainder to the heirs of the grantee, and not to the heirs of the grantor, we have to strike out the word "his" before the word "heirs" in the habendum clause, and insert in lieu thereof the word "her, " which will entirely change the meaning of the habendum clause. While, to effectuate the intention of the grantor, rules of grammatical construction may be disregarded, sentences and words may be transposed, conjunctions may be substituted for each other, and "in extreme cases of ambiguity, where the instrument as it stands is without meaning, words may be supplied" (Civil Code 1910, § 4268. par. 5), we know of no rule by which a word of everyday use and meaning, which is understood by both the learned and the unlearned, can be stricken from a deed, and another word, in daily use, and the meaning of which is equally well understood both by the learned and the unlearned, can be substituted in the place of the word so stricken, when the effect of such substitution entirely changes the meaning of the instrument or one of the vital clauses therein. With this word "his" left in the habendum clause, the meaning of the instrument is fairly clear. By it Bennett...