Whetstone v. Hunt

• Decision Date: 24 March 1906
• Parties: WHETSTONE v. HUNT et al.
• Court: Arkansas Supreme Court

93 S.W. 979

WHETSTONE v. HUNT et al.

Supreme Court of Arkansas.

March 24, 1906.

Appeal from Circuit Court, Miller County; Joel D. Conway, Judge.

Action by Eliza Whetstone against M. M. Hunt and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Byrne & Lewis and E. F. Friedell, for appellant. Scott & Head, for appellees.

McCULLOCH, J.

This is an action of ejectment which involves the construction of the following deed (omitting caption): "That the said Eliza Whetstone and her husband, Evans L. Whetstone, for and in consideration of the sum of five hundred dollars, lawful money of the United States, in hand, the receipt of which is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain and sell and convey unto Samuel W. Mays, party of the second part, his heirs and assigns the entire interest of the said Eliza Whetstone and her husband Evans L. Whetstone, in and to the property belonging to the estate of John C. Blanton, decd. late of the county and state aforesaid, and consisting of a one-third interest of the following described property, belonging to the estate of the said John C. Blanton, decd., to wit: [Here follows the description.] To have and to hold the above bargained and granted land for life together with all the interest that the said party of the first part has or may have in or to any and all property real or personal belonging to the estate of the said John C. Blanton, decd. And for and in consideration of the foregoing payment five hundred dollars by the party of the second part to the party of the first part, the party of the first part hereby sells, bargains and conveys, give, grant and release all their claim interest or demands as heirs of Richard Blanton, decd. in and to any or all property real or personal belonging to said estate of the said Richard Blanton, decd. unto the party of the second part, his heirs and assigns forever, and the party of the first part do further agree with the party of the second part that they are the lawful heirs of the said John C. Blanton decd. and Richard Blanton, decd. and that they have a good and lawful right to sell their interests in the aforesaid lands and their whole interest in all property belonging to said estate, that their interest is free from all incumbrances suffered or made through them, and that they will and that their estate covenant and defend the said party of the second part, his heirs and assigns, the lawful claims and demands of all persons whatsoever." The interest claimed is that inherited from John C. Blanton; it being conceded that appellant's interest in the Richard Blanton lands was conveyed in fee simple by the deed. It is contended by appellant that an estate for and during the life of the grantee was conveyed by the deed, whilst appellees contend that an estate in fee simple was conveyed. The circuit court held that an estate for and during the life of the grantor was conveyed. Both parties have appealed to this court.

We are of the opinion that the court was correct in its construction of the grant. "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. If, therefore, a...