Zittle v. Weller

• Decision Date: 13 February 1885
• Citation: 63 Md. 190
• Parties: JOSEPHINE ZITTLE and Otho J. Zittle, Her Husband, v. SAMUEL WELLER and Others.
• Court: Maryland Court of Appeals

63 Md. 190

JOSEPHINE ZITTLE and Otho J. Zittle, Her Husband, v. SAMUEL WELLER and Others.

Court of Appeals of Maryland

February 13, 1885

Appeal from the Circuit Court for Washington County, in equity.

The case is stated in the opinion of the court.

The cause was argued before ALVEY, C.J., STONE, MILLER, IRVING and BRYAN, JJ.

Samuel B. Loose and Hy. Kyd Douglas, for the appellants.

In the construction of this deed the old rule, that "the words of an instrument should be taken most strongly against the one using them," cannot have much weight; the rule is harsh and arbitrary, and is resorted to only in extreme cases, that is, when all other means have failed. Varnum v. Thruston, 17 Md. 496.

The modern practice is to give every word a meaning, and to ascertain, from the whole instrument, the true intent and meaning of the parties. "The intention, when apparent and not repugnant to any rule of law, will control technical terms." One part should be compared with another, and the meaning extracted from the whole. Hope v Hutchins, 9 G. & J. 77; Walters v. Griffith, 2 Md. 326; Jackson v. Myers, 3 John. 388.

The first part of this deed purports to convey the whole interest in the land; but subsequently there is a clause limiting and controlling the words of general grant. This clause shows the particular intention of the parties, and distinctly limits and defines the interest conveyed. It stands in the premises and must be construed as part thereof; just as if the grantor had said, "I am hereby conveying to you all my interest in this land, that that interest is only two-thirds of it." If the grantor at the time had a greater interest the rule contended for might be applied to him; if he had not, how could he be understood as conveying or attempting to convey more? But should this clause have occurred in the habendum, its operative effect could not be destroyed. Hammond v. Brice, 1 H. & McH. 322; Tyler v. Moore, 42 Pa. St. 374; Wager v. Wager, 1 Serg. & Rawle, 374; Moss v. Sheldon, 3 W. & S. 160; Stambaugh v. Hollabaugh, 10 Serg. & Rawle, 357; Stokely's Estate, 19 Pa. St. 476; Whitaker v. Brown, 46 Pa. St. 197; Baker v. McDowell, 3 W. & S. 358.

If the whole estate passed by this deed, then the subsequent clause is meaningless, and language, plain and intelligible, would stand for naught. Every word should have its meaning; and such a construction, therefore, would override the intention of the parties and do violence to the well established rules of law. Standing, as it does, after the general clause, and limiting the same, it takes precedence; for it is a particular clause which sums up the final intention of the parties. 2 Greenl. Cruise on Real Prop. 590, 591 and note, 599 and note; Ousby v. Jones, 28 Sickels, 621; Hammond v. Brice, 1 H. & McH. 322; Mims v. Armstrong, 31 Md. 87.

In an analogous case, a conveyance of land, after the description, but before the habendum, contained a clause stating that "the said land is to be common and unoccupied." Held, the words took effect as a valid reservation. 2 Greenl. Cruise on Real Prop. 649 and note.

If, however, in construing this deed, it would seem that the two clauses cannot stand together, on account of repugnancy, construing both as granting clauses, then the latter clause would be good and effective as a reservation or exception. The technical terms "except" and "reserve" are not essential; it is sufficient where the language shows the intent. 4 Kent, 486, notes e and f; Sheppard's Touchstone, 77 et seq.; Clark v. Cottrell, 42 N.Y. 527; Allen v. Allen, 14 Maine, 387; Pike v. Moore, 36 Maine, 314; Sprague v. Snow, 4 Pick. 54; Jackson v. Stevens, 16 John. 114.

But they can hardly be called repugnant clauses. They are merely two clauses or sentences in the same premises, intended to limit and define the interest conveyed, and the intention could not have been expressed more clearly. In construing deeds courts do not search for contradictions nor strain language to find them. They rather think with C.J. Tilghman ( Wager v. Wager, 1 Serg. & Rawle, 374), "it never could be a man's intent to contradict himself."

From the statement of facts it appears, at the date of the deed from Bachtel to Weller, that Harriet, the mother of Samuel Bachtel, was living and enjoying the estate granted her by Bachtel on the 28th of June, 1852. At this time, therefore, Bachtel possessed the two-thirds interest in the land, with the right of present enjoyment, the other third being a "reversion," the enjoyment of which depended on the "particular" estate granted his mother. Actually possessing only the two-thirds, Bachtel intended only to pass the two-thirds. A deed passes only the interest intended, no matter how general the terms. The language used clearly shows the parties contracted only for the two-thirds. It is true that general words will pass a "reversion;" but not where a different intention is shown in another part of the deed. The granting clause in this deed, preceding the description, and standing alone, would have carried the reversion; but subsequently occurs the saving clause, explaining what precedes, and showing the intention to be that the "reversion" was not within the scope of the grant. And in order that the purpose and mutual understanding might be made unmistakably clear, the declaration in the deed limiting the interest conveyed to two-thirds is immediately followed by a clause in which Bachtel and wife bind themselves to ask no more than the amount of consideration mentioned in the deed--as if to repeat, emphatically, that $3000 was for the two-thirds interest, and was enough for it. 2 Greenl. Cruise on Real Prop. 596, note; Chapman v. Gatcombe, 2 Bing. N. C. 516; 2 Scott, 738; Goodwin v. Noble, 8 El. & Bl. 587; Mullineux v. Ellison, 8 L. T. N. S. 236.

Henry H. Keedy, for the appellees,

Cited the following cases: Oxenforth v. Cawkwell, 2 Sim. & St. 558; Strutt v. Finch, 2 Sim. & St. 233; Stockett v. Goodman, 47 Md. 59; Miner's Appeal, 61 Pa. St. 285; Cutler v. Tufts, 3 Pick. 272; Swick v. Sears, 1 Hill, 17.

Irving J., delivered the opinion of the court.

A bill was filed by the appellants against the appellees for the sale of certain real estate for the purpose of partition. The bill was dismissed upon the ground that the complainants had no interest in the property, because it was held that Samuel A. Bachtel, the father of the complainant, Josephine Zittle, had, in his lifetime, conveyed all his interest in the real estate to the ancestor of the defendants, Jacob Weller. The sole question presented by this appeal is the construction of the deed from Samuel A. Bachtel to Jacob Weller.

Being entitled to the estate in fee, on the 28th of June, 1852, Samuel A. Bachtel conveyed to his mother, Harriet Bachtel, one undivided third part of the lands during her widowhood. On the 19th of May, 1853, he executed to Jacob Weller the deed which raises the present controversy. The reversion in fee to the grantor and his heirs was expressly reserved in the deed to Mrs. Bachtel. She died two years ago, and the complainant, Mrs. Zittle, the only child and heir-at-law of Samuel A. Bachtel, filed her bill claiming one-third part of the lands and asking for a decree for its sale for partition. The appellees contend that the reversion of Samuel A. Bachtel in the undivided third conveyed to his mother passed by his deed to Jacob Weller.

The granting clause of this deed reads thus: "And by these presents do grant, bargain and sell unto the said Jacob Weller, his heirs and assigns, all their estate, right, title and interest, trust property, claim and demand whatsoever at law and in equity, of them, the said Samuel A. Bachtel and Nancy, his wife, of, in, and to the following described parts of tracts or parcels of land situate in the county and State aforesaid, viz., the first part being part of a tract of land called 'Bachtel's Abode,' beginning at a white oak tree marked with three notches," etc. * * * "The second parcel being also a part of said resurvey called 'Bachtel's Abode,' beginning," etc. *...