Winter v. Gorsuch

• Decision Date: 25 March 1879
• Citation: 51 Md. 180
• Parties: WILLIAM P. WINTER, Guardian of AMELIA L. and CORA WINTER v. ANN M. GORSUCH, and others.
• Court: Maryland Court of Appeals

51 Md. 180

WILLIAM P. WINTER, Guardian of AMELIA L. and CORA WINTER v. ANN M. GORSUCH, and others.

Court of Appeals of Maryland

March 25, 1879

APPEAL from the Circuit Court of Baltimore City.

This was a proceeding in equity by the appellant, as guardian of the infant children of himself and Emma R. Winter his wife to obtain a decree for the sale of certain leasehold property, in which, it was claimed, the children had an estate in remainder after a life estate of the wife, by virtue of a deed from one Henry Newman to the said Emma (misnamed Amaryllis in the deed.) The terms of this deed are set forth in the opinion of the Court. In the bill of complaint the appellees were made defendants and were alleged to be the owners, by purchase and conveyance, of the interest of Emma R. Walker (still living) in the property.

The defendants demurred to the bill; and from the order of the Court below (GILMOR, J.,) sustaining this demurrer, the complainant appealed.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER ALVEY and ROBINSON, J., for the appellant, and submitted for the appellees.

Victor Smith, for the appellant.

The demurrer in this case filed should not be sustained, because the bill sets forth on its face a state of facts which, if true, will entitle complainant to the relief sought, and whether or not the exhibits filed sustain the allegations of the bill, are matters of fact to be decided by the Court at the final hearing, and are not matters of law appearing on the face of the bill. Carroll vs. Waring, 3 G. & J., 491; Barroll's Ch. Pr., 111.

Admitting for the sake of argument, that the construction of the deed in question in this case, being complainant's exhibit can be brought up on a demurrer, the deed conveys the life estate to Amaryllis Winter, and an estate in remainder to complainant's wards. A deed which, in the granting part, conveys an estate of inheritance to A, may, by the habendum, limit the estate to him for life, when, from the whole deed, it is clear that A was to have only a life estate. Hammond's Lessee vs. Brice, 1 H. & McH., 322; 9 G. & J., 77; 3 H. & J., 329; Varnum vs. Thruston, 17 Md., 471; Carroll vs. Granite Co., 11 Md., 411.

In this case the intention of the grantor was to secure the property to said Amaryllis Winter, and to her children after her death, free from any debts of her husband, and, as far as the children were concerned, free from debts of said Amaryllis Winter. The habendum clause is not repugnant to the premises, but in point of fact is explanatory, and can be reconciled. The intention of the grantor is a matter of evidence, and not a question of law to be raised on demurrer.

The confirmatory deed can in no manner change the estate that had already vested by the first deed. Erken vs. McAllister, 45 Md., 290.

John S. Tyson, for the appellees.

It is presumed that the complainant intended to claim relief under the Act of 1862, ch. 156, amended and re-enacted by the Act of 1868, ch. 273, which authorizes a Court of equity, pending an estate for life, if it shall appear to be advantageous to the parties concerned, and if all the parties in being are parties to the proceeding, to decree a sale upon the application of any of the parties in interest, and to direct the investment of the proceeds of sale, so as to enure to the use of the same parties who would be entitled to the land sold.

In support of the demurrer, it is contended that the appellant has failed, in every particular, to bring his case within the provisions of this Act. A sale can only be decreed upon the application of a party in interest. The children of Emma R. Winter have no interest in the property. The grantor, by the premises of the deed, conveyed the whole leasehold interest to Emma R. Winter, "" her personal representatives and assigns." The habendum to her for life is, therefore, void. Budd vs. Brooke, 3 Gill, 198; Farquharson vs. Eichelberger, 15 Md., 72.

This rule of construction is not in conflict with the principle that in construing a deed, all parts of it must be looked at to ascertain the intention. Here there is an irreconcilable contradiction between the premises and the habendum. One must yield, and the rule is that the habendum must yield.

MILLER J., delivered the opinion of the Court.

In defining the office and effect of the habendum clause in a deed, BLACKSTONE, in his Commentaries ( Book 2, page 298,) after stating that it cannot totally contradict or be repugnant to the estate granted in the premises, puts an illustration of such repugnancy thus: "If a grant be to one and his heirs in the premises, habendum to him for life, the habendum will be utterly void, for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away by it," and for this the authority of Lord COKE found in the third resolution in Baldwin's Case, 2 Rep., 23, and in Earl of Rutland's Case, 8 Rep., 56, is cited. In the notes to Baldwin's Case, found in Thomas' edition of the Reports, other authorities sustaining the same position, are referred to, and it is there said: "This doctrine proceeds upon the principle that where there are two clauses in a deed repugnant to each other, the first shall prevail, Leicester vs. Biggs, 2 Taunt., 113; and every deed is expounded most strongly against the grantor and most for the advantage of the grantee, and therefore the grantee shall take by the premises if that be most beneficial for him and not by the habendum, and the grantor shall not be allowed by any subsequent part of the deed to retract the gift made in the premises: post, 8 Co., 54 b; 1 Inst., 299 a, and 2554." More recently the same doctrine was affirmed in Goodtitle vs. Gibbs, 5 Barn. & Cress., 709. In that case the distinction as to the effect of the habendum in deeds in which the premises expressly mention an estate or interest, and in those in which the premises merely describe the tenements but do not mention any estate or interest, is noticed, and with respect to the former, ABBOTT, C.J., says: "On the other hand, if an estate or interest be mentioned in the premises, the intention of the parties is shown, and the deed may be effectual without any habendum, and if an habendum follow which is repugnant to the premises, or contrary to the rules of law and incapable of a construction...