Stokes v. State

• Decision Date: 22 November 1915
• Docket Number: 10
• Citation: 180 S.W. 492,121 Ark. 95
• Parties: STOKES v. STATE. KENNER v. STATE
• Court: Arkansas Supreme Court

180 S.W. 492

121 Ark. 95

STOKES v. STATE.

KENNER v. STATE

No. 10

Supreme Court of Arkansas

November 22, 1915

Appeal from Mississippi Circuit Court, Chickasawba District; W. J Driver, Judge; affirmed.

Judgments affirmed.

Mehaffy Reid & Mehaffy, for appellant.

1. The granting clause in this deed is sufficient, both at common law and under the statute, to convey a fee simple estate.

Subsequent clauses must be so construed as to yield to the grant. If the clause in the habendum or concluding portion of the deed relating to the use to which the land is to be put, can not stand consistent with the clause in the premises granting an estate in fee simple, the latter must yield. 82 Ark. 211; 82 Me. 562.

In construing a deed, the emphasis has always been placed upon the granting clause, and that construction given which is most unfavorable to the grantor. 53 Ark. 107; 27 Ark. 518, 523. It is evident from the provision made in the deed for the reverting of the title in the grantors in the event of abandonment or dissolution of the club, that the parties intended to vest title to the land in the grantees. The use of the words "revest" and "revert" can have no other significance in the instrument. 13 Cyc. 669.

The stipulation that the land is to be used for a particular purpose only, is at most but a condition subsequent which may be waived or forfeited by any conduct on the part of the grantors indicating that the condition will not be insisted upon. 145 F. 296; 34 N.C. 194; 18 Conn. 535; 12 Barber (N. Y.) 440; 98 Ark. 329; 59 Ark. 405; 41 Pa.St. 341; 72 Ky. 202, 9 Bush 202.

2. Appellees have acquired title by adverse possession. They have exercised acts of ownership undisputed and unquestioned over the lands upon which they hunted, ever since they were conveyed to them in July, 1901. 88 Ark. 318; 85 Ark. 4; 87 Ark. 168; 87 Ark. 496. See also cases cited in Michie's Digest, Ark. Rep., tit. "Adverse Possession," 105, par 41; 148 F. 781; 1 Ruling Case Law, 694, 695.

Wallace Davis, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

If the real purpose of the deed was merely to confer the right to hunt and fish, the judgments must, under the rule announced in the former decision in the case, be affirmed.

There is no habendum clause in this deed; on the contrary, the clause following the description is clearly a limitation on the grant. The deed is not ambiguous. The intention is plainly discernible from the whole instrument, namely, that the grantor only wanted to give to the hunting club the right to hunt and fish on the lake. 26 S. E. (Va.) 844.

OPINION

SMITH, J.

These cases are identical with the case of State v. Stokes, reported in 117 Ark. 192, 174 S.W. 1156, except that it is said that the deed as set out in the opinion in the former case was not correctly copied into the record of that case.

The deed as it appears in the record of the present cases is as follows:

"Know All Men by These Presents:

"That the Paepcke-Leicht Lumber Company and Chicago Mill & Lumber Company, for and in consideration of five dollars to them paid by W. H. Jackson, president, and J. H. Acklen, secretary, as trustees for Big Lake Shooting Club, a social organization, do hereby grant, bargain, sell and convey unto the said W. H. Jackson and J. H. Acklen, trustees as aforesaid, and unto their successors in the offices of president and secretary, respectively, of Big Lake Shooting Club, the following lands and waters lying in the county of Mississippi and State of Arkansas, towit:

"First. Beginning at a point ten feet east of where the original survey of the United States Government, made about the year 1834, defining the shore line of Big Lake, intersects with the line between the States of Missouri and Arkansas, and near the center of section 19, township 16 north, range 10 east, running thence southwardly and always ten feet east of and parallel with the shore line of the original survey as it meanders through sections 19, 20, 29 and 32 in said township, also through sections 5, 8, 17, 18, 19 and 30 of township 15 north, range 10 east, also through sections 25 and 36 of township 15 north, range 9 east, to the north line of section 1, in township 14 north, range 9 east, together with all accretions to each of said sections and fractional sections westward to the thread of Little River, in Big Lake.

"Second. Beginning at a point ten feet west of where the half section line running east and west of section 33, of township 15 north, range 9 east, intersects the shore line of Big Lake in the original survey of the United States Government, running thence southwardly and always ten feet west and parallel with the shore line of the said survey, as it meanders through said section 33, and also through sections 4 and 9, of township 14 north, range 9 east, to the north line of section 16, of said township 14 north, range 9 east, together with all accretions to each of said sections and fractional sections eastward to the thread of Little River in Big Lake.

"It is understood that said property is to be used as a game and fish preserve only, and the conveyors herein reserve to themselves the right to cut and remove all the timber on said lands, and it is a condition of this conveyance that should the Big Lake Shooting Club abandon the property, or said club cease to exist, then and in that event, said lands shall revert to, and the title thereto revest in Paepcke-Leicht Lumber Company, or its successors.

"Witness our hands and seals this the 2d day of July, 1901."

By comparison it will be observed that the deeds differ in the following respect: The deed in the present cases contains the clause "do hereby grant, bargain, sell and convey unto the said W. H. Jackson and J. H. Acklen, trustees as aforesaid, and unto their successors in the offices of president and secretary, respectively, of Big Lake Shooting Club," which clause was not contained in the former deed.

It is now urged that because of this difference in the deeds the opinion in the former case is not controlling here. It is admitted, of course, that appellants are nonresidents and were properly convicted upon the charge of unlawful hunting, unless the deed set out above, conveyed such interest in the land as gave to the members of the shooting club the right to hunt and fish thereon.

Appellants state their position as follows: "That, upon careful analysis, nothing is found wanting from the deed presented here to detract from its sufficiency as an effectual conveyance of an estate in the land described. It grants, bargains, sells and conveys unto the grantees 'and their successors' in office, the lands upon which it is admitted the hunting was done. The presence of the granting clause in the deed under consideration vested in the grantees a fee in the lands. The granting clause in the deed now under consideration, both at common law and under the statute, was sufficient to convey a fee simple estate. Does the last paragraph of the deed, which is merely declaratory of the use to which the land is to be put, so control its construction that the grantee takes no ownership whatever in the land?"

Appellants cite the case of CarlLee v. Ellsberry, 82 Ark. 209, 101 S.W. 407, as sustaining their position. In that case a deed was construed, the granting clause of which conveyed the land described to the grantee in fee simple, but with a proviso in the habendum clause which limited the estate conveyed in certain contingencies to a life estate. After pointing out the repugnancy it was said: "The conveyance in fee simple carries with it the power to dispose of the estate by deed or will. The power of alienation is an inseparable incident of such an estate. So the deed in question conveyed to Mrs. Ellsberry the estate in fee simple with the power to dispose of it. The limitation of it to a life estate was repugnant to the granting clause, and was void."

But it will be observed that the repugnancy was irreconcilable and the court was called upon to say which of two conflicting clauses should be given effect, and the decision was reached by resort to the common law maxim that "the first deed and the last will shall operate," which maxim finds further expression in the rule of construction that, in case of irreconcilable conflict between the granting and the habendum clause, the former shall prevail.

In so announcing this conclusion the court cited and quoted from the case of Whetstone v. Hunt, 78 Ark. 230, 93 S.W. 979, in which last mentioned case it was said that resort to this rule of construction would be had only in cases of irreconcilable conflict between the clauses of the deed, and the syllabus there is as follows: "While it is a rule of law that, if there is a clear repugnance between the granting and habendum clauses in a deed, the latter must give way, upon the theory that the deed should be construed most strongly against the grantor, yet it is only where these clauses are irreconcilably repugnant that such a disposition of the question is required to be made."

The court quoted with approval the following statement from 3 Washburn, Real Property (6 ed.) section 2360, "'If,' says Mr. Washburn, 'there is a clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former; but if they can be construed so as to stand together by limiting the estate without contradicting the grant, the court always gives that construction, in order to give effect to both.' (Cases cited)."

The discussion of the subject was concluded with the statement that "it is our duty to give all parts of the deed such construction, if possible, as that they will stand together."

The case of Whetstone v. Hunt, supra is...