Weekley v. Weekley et al.

• Decision Date: 15 December 1914
• Docket Number: No. 2185.,2185.
• Citation: 75 W.Va. 280
• Court: West Virginia Supreme Court
• Parties: Weekley v. Weekley et al.

75 W.Va. 280

Weekley

v.Weekley et al.

No. 2185

Supreme Court of Appeals of West Virginia.

Submitted November 24, 1914.

Decided December 15, 1914.

1. Deeds Construction Estates Conveyed.

When read and considered as a whole, a deed whereby the "parties of the first part grant to the party of the second pa*t'7, W. J. Weekley, two tracts of land, describing them, without specifying the quantity of estate conveyed, but with the provision, immediately following the description of the property and as a part of the granting clause, that the "land shall fall to * * * John W. Weekley and his heirs when the said W. J. Weekley is done with the same", vests a life estate only in W. J. Weekley and a remainder in fee in John W. Weekley. (p. 281).

2. Same Designation of Grantee Estate in Remainder.

If designated and sufficiently identified in the granting or habendum clause, one may as grantee take in remainder subject to a life estate, though not named as such in the premises of the deed, (p. 282).

3. Pleading -SimiliterCure of Error.

To a plea concluding "to the country", a similiter only is proper, and its omission is cured after verdict or judgment, (p. 284).

Error to Circuit Court, Marion County. Ejectment by John W. Weekley against Lillie Weekley and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

C. A. Snodgrass, for plaintiffs in error. M. J. Cullinar, for defendant in error.

Lynch, Judge:

In ejectment, wherein John W. Weekley was plaintiff and Lillie Weekley and her infant son were defendants, the circuit court of Marion county, on facts agreed, found for plaintiff, and defendants have assigned error. The result of the action depended solely upon the construction of the deed under which the parties claimed title to the two lots in controversy. No question arose as to the consideration for the grant, or the identification of the lots conveyed.

Though unskillfully drawn, the deed was sufficient to pass the title. The sole question is whether the grant was to W. J. Weekley in fee, or to him for life and remainder to his son, John W. Weekley. The deed did not specify the estate granted. But §8, Ch. 71, Code, says: "Where any real estate is conveyed * * * to any person without any words of limitation" it " shall be construed to pass the fee simple or the whole estate or interest the grantor had power to dispose of in such real estate, unless a contrary intention shall appear from the grant". Following the grant, and apparently a part of it, are the words: "The above dc-scribed tracts of land shall fall to W. J. Weekley, son John W. Weekley, and his heirs, when said W. J. Weekley is done with the same".

These words manifest an intention on the part of the grantors to curtail the fee, which by the section cited would have passed to W. J. AVeekley under the conveyance, to a life estate in him with remainder in fee to his son, John W. Weekley, the plaintiff. That the latter was not otherwise named in the deed is not material, if the language quoted may be said to constitute the habendum clause. Unless there is repugnancy between the granting and habendum clauses, a party not named in the premises may take under the deed if named in the habendum clause. "Thus, there is no repugnancy between the two clauses when the party who is to take, though not named in the grant, may be ascertained from the habendum clause." Dev. Real Est. §219. The same author at §220 says: "While the habendum clause can not abridge an estate granted, yet where the granting clause does not mention the estate conveyed, the habendum clause may have the effect of declaring the intention, and may overcome any presumption that in its absence would properly arise from the defect in the preceding clause''. So Jones on Real Estate §224 says: "It is not essential that the grantee should be formally named in the granting part of the deed. It is only necessary that, taking the whole instrument together, there is no uncertainty as to the grantee. * * * If the instrument shows who he is, if it designates him and so identities him that there is no reasonable doubt respecting the party constituted grantee, it is not of vital consequence that the matter which establishes his identity is not in the common or best form or in the usual or most appropriate position in the instrument". While a stranger to a deed can not be introduced in the habendum clause to take a fee, he can take in remainder when by construction of the entire instrument it appears that the intention of the parties is thus given effect. Acker v. Pridgen, 158 N. C. 337.

The modern and authoritative rule for construing deeds requires enforcement of the grantor's intention, when manifested by the plain import of the language used; and, to ascertain such intention, the instrument must be examined and considered in its entirety, and not otherwise. If, when so examined and considered, such intention appears, effect must be given to it, unless to do so would conflict with some other well established canon of construction or some principle of law. Irwin v. Stover, 67 W. Va. 356; Waldron v. Coal Co., 61 W. Va. 280; TThl v. Railroad Co., 51 W. Va. 106; Harkness v. Meade, 148 Ky. 565.

In construing deeds, resort must not be made to arbitrary rules. But when the intention of the parties is manifest, effect should be given, wherever possible, to the habendum as well as to the granting clause; because the object of the habendum is to enlarge, limit or explain the estate conveyed. The court may disregard the technical words used, and adopt such construction as, on a general view of the instrument and of the plain purport of its language, seems most likely to effectuate the real intention of the parties to it. Dev. Real Est. §836a. So construed, a deed containing an express grant to the...