Weatherly v. Purcell

• Decision Date: 20 November 1950
• Docket Number: No. 4-9286,4-9286
• Citation: 217 Ark. 908,234 S.W.2d 32
• Parties: WEATHERLY v. PURCELL et al.
• Court: Arkansas Supreme Court

Page 32

234 S.W.2d 32

217 Ark. 908

WEATHERLY v. PURCELL et al.

No. 4-9286.

Supreme Court of Arkansas.

Nov. 20, 1950.

Phil Herget and Kirsch & Cathey, Paragould, for appellant.

Lee Ward, Paragould, for appellees.

LEFLAR, Justice.

William H. and John J. Purcell brought ejectment against W. R. Weatherly, claiming title to certain land by reason of a deed executed by their grandfather to their father. Defendant Weatherly by answer denied that the Purcells had title; and also by cross-complaint asserted that, if title should be found to be in the Purcells he was entitled to reimbursement under Ark. Stats. § 34-1423, for the value of improvements made upon the land during his prior occupancy. At the trial the Circuit Judge held that as a matter of law the Purcells had the title, and submitted to the jury only the question as to whether and in what amount Weatherly had made improvements upon the land within the meaning of § 34-1423. On this issue the jury returned a verdict in Weatherly's favor for $7,760.00. Now, Weatherly appeals from that part of the judgment which held title to be in the Purcells, and the Purcells cross-appeal from the award to Weatherly for improvements made.

(1) The deed in question, from the Purcells' grandfather to their father, was executed in 1889. In the granting clause it conveys the land to 'John E. Purcell and his bodily heirs.' The recitation in the habendum is 'to have and to hold the afore granted premises to the said John E. Purcell and his heirs aforesaid in fee simple forever.' Then the covenanting clause runs in favor of 'the said John E. Purcell his heirs and assigns forever.' And finally the release of dower clause, signed by the grantor grandfather's wife, is 'unto the said John E. Purcell his heirs and assigns.'

The grantee John E. Purcell occupied the land from 1889 to 1930, when he conveyed to defendant Weatherly, purporting to transfer a fee simple estate. John E. Purcell died in 1949, leaving plaintiffs William H. and John J. Purcell as the heirs of his body.

Weatherly's claim to title is based on the theory that the deed, read as a whole, conveyed to John E. Purcell a fee simple estate, which was in turn conveyed to Weatherly by the 1930 deed. The theory of the plaintiffs, the Purcells, is that the deed conveyed only a common law fee tail estate which, by Ark.Stats. § 50-405, is made into a life estate in the first grantee followed by a remainder in fee simple to the heirs of the life tenant's body. Under this theory John E. Purcell could convey to Weatherly no greater interest than his own life estate which ended in 1949, at which time the plaintiffs as remaindermen became entitled to possession.

We are definitely committed to the rule that the effect of a deed is not to be determined by the words of the granting clause alone, but is to be discovered from the language of the instrument as a whole. When there is inconsistency between the granting clause and the habendum, the words of the habendum will prevail if, looking at 'the four corners of the deed', it is determined that they represent the true intent of the grantor as expressed by the whole deed. Luther v. Patman, 200 Ark. 853, 141 S.W.2d 42; Beasley v. Shinn, 201 Ark. 31, 144 S.W.2d 710, 131 A.L.R. 1234; Stewart v. Warren, 202 Ark. 873, 153 S.W.2d 545; Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W.2d 215; Coffelt v. Decatur School Dist., 212 Ark. 743, 208 S.W.2d 1; McBride v. Conyers, 212 Ark. 1034, 208 S.W.2d 1006. And see Restatement, Property, § 242(c).

A majority of the Court have concluded that no inconsistency appears in the present deed, that Weatherly had only an estate pur autre vie which is now ended, and that the Purcells are entitled to possession as remaindermen. The granting clause of the deed runs to 'John E. Purcell and his bodily heirs.' These words by themselves would create a fee tail at common law. The habendum is 'to the said John E. Purcell and his heirs aforesaid in fee simple forever.' The 'heirs aforesaid' to which the habendum refers are 'his bodily heirs' as set out in the granting clause. By our statute, § 50-405, the legal effect of a gift to P and his bodily heirs is a life estate to P and a fee simple to the 'heirs aforesaid,' to wit, P's bodily heirs. That is exactly what the habendum called for. Under this view, there is in the deed no conflict of language calling for interpretation of the instrument as a whole. The language in the covenant and release of dower clauses is deemed to refer only to the particular heirs whose relevance to the conveyance is fixed by the granting clause and habendum, inasmuch as the later clauses in the deed serve incidental purposes only, and do not purport to define the estate conveyed.

This view is supported by Corbin v. Healy, 20 Pick. 514, 37 Mass. 514, quoted and followed in our own case of Dempsey v. Davis, 98 Ark. 570, 136 S.W. 975. In Corbin v. Healy the conveyance was to 'Rhoda and to her heirs born of her body * * * to have and to hold the same' to her 'and her heirs forever,' followed by covenants to her 'and her heirs as aforesaid.' The Massachusetts court, by Shaw, C. J., 'conceded that the habendum may...