Barksdale v. Barksdale

45 So. 615, 92 Miss. 166

• Court: Mississippi Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Whitfield, O. I-.,

delivered the opinion of the court.

The deed in this case in its granting clause is as follows:

“State of Mississippi, Grenada county, Por and in consideration of the love and affection I have my wife Weet Barksdale,, and the further consideration of money spent by me belonging; to her, I do hereby grant, bargain, sell, convey and warrant to-her all the lands bequeathed to me by the will of my uncle,. Hickerson H. Barksdale. All of said lands are lying, and being situated, in the said Grenada county, known as the Minter Place, and state of Mississippi, I also sell and convey to her all personalty which I own or upon which I have an interest on said' Minter Place.”

The phraseology of the deed is obviously very awkward; but the last clause is, of course, to be read as if written, “All of said lands are lying and being situated in said Grenada county, state of Mississippi, known as the Minter Place.” The granting clause here is perfectly clear. What is the thing granted? Why, manifestly, all the lands devised to the grantor by the will of his uncle. He twice states that. “All of the lands bequeathed” to him by his uncle, and again he says, “All said lands;” said lands being all the lands which had been bequeathed to him hy his uncle. It is perfectly plain that “all said lands” are in Grenada county, Miss. The general rule that, “where a general- description is followed by a particular description, the particular description controls, and the other will, be rejected,” is, of course;, thoroughly sound; but in every such case ..the particular , description must be not a redescription merely, but a .second limiting description, a second granting clause. Where the alleged second description in no way limits or cuts, down the .area of the general granting clause, perfect in i-tpelf, then such alleged second description is nothing more nor less than a redescription, a mere reiteration, an effort to give to the land embraced in the general grant some other name by. which it may be known in a community, without any purpose in mind to cut down from the extent and area of the perfectly correct general grant. What have,we here-.that is relied on to cut down this good, this perfect, description in the general grant? Nothing save the mere participial phrase, carelessly thrown in, “known as the Minter Place.” It would be sacrificing substance to forcn, it would be an utter disregard of the plain intent'of the.grantor, to say that after he had plainly declared his purpose to convey all the lands in Grenada .county, state of Mississippi,-, devised to him by his uncle,- he. had cut down a perfect grant by the careless use ■ of ■ the mere participial phrase, “known as the Minter Place/” The general , principle to which we have .above referred has no:application to the language of this deed. This is a mere reiteration or attempted redescription of what had already been perfectly conveyed. It does not carve out.of the ■original grant, or except from the original grant, by a particular •description of any kind, any part or parcel- of thatoriginal grant.

We do not think the clause granting the personalty at all interferes with this construction. It appears from the will of Hickerson IT. Barksdale that John II, Barksdale;, the grantor in this deed, received, .from his uncle’s will a small amount of personalty .and a one-half interest in-the-Minter Place,, but that he did not receive any .personalty with the-other, land devised to him by his uncle. He therefore, properly enough; describes the personalty which he was conveying as being.on said .-Minter Place, and not as being.located on.the other lands devised,’ making himself a sharp distinction between the lands conveyed on which personalty was located, and lands conveyed on which ho owned no personalty. The grantor knew he owned part only of the personalty on the Minter place, and he certainly also knew that he owned but a one-half interest in the Minter place itself. If it had been his purpose to convey only the one-half interest which he really had, would he not have expressed that intention aptly, instead of twice calling attention to the fact that he was conveying all of the lands devised to him by the will of his uncle? The phrase “all said lands,” in the second clause of the deed, docs not refer to the Minter Place, but manifestly to all the lands which had been devised by his uncle, which said lands lay in Grenada county, state of Mississippi. The true principle here is this: That a good general grant will never be limited by a subsequent particular description unless it is manifest that this particular description was meant to operate as a limitation; and this intention, that it shall so operate as a limitation, must be definitely expressed in the terms used in the particular description.

We refer to the authorities cited in the brief of the learned counsel of the appellee. They have been very carefully collated, and we need not repeat them in the opinion; but we will refer to a few only, especially applicable. First, in the case of Pike v. Monroe, 36 Me., 309, 58 Am. Dec., 751, the court very coi’rectly expressed the true doctrine thus: “The first deed and the last will shall operate, is the ancient maxim. Paramour v. Yardley, Plow., 541; Shep. Touch., 88. Subsequent words shall not defeat precedent ones, if by construction they may stand together. But where there are two clauses in a deed, of which the latter is contradictory to the former, then the former shall stand. Cru. Dig. tit. ‘Deed,’ c. 20, § 8. These, however, are technical rules of construction, which were adopted, as declared by Lord Mansfield, ‘for want of a better reason,’ and are not entitled to much consideration, and should never be resorted to for purposes of construction, unless difficulties are presented which cannot be resolved by more satisfactory rules. In modern times they have given way to the more sensible rule of construction, which is in all cases to give effect to the intention of the parties, if practicable, when no principle of law is thereby violated. This intention is to be ascertained by taking into consideration all the provisions of the deed, as well as the situation of the parties to it. [Exactly the doctrine of Hart v. Gardner, 74 Miss., 153, 20 South., 877.] Whatever is expressly granted, or covenanted, or promised, cannot be restricted or diminished by subsequent provisions or restrictions; but general or doubtful clauses precedent may be explained by subsequent words and clauses not repugnant or contradictory to the express grant,, covenant, or promise. Cutler v. Tufts, 3 Pick. (Mass.), 272; Willard v. Moulton, 4 Me., 14. If a deed may operate in two ways, the one of which is consistent with the intent of the parties, and the other repugnant thereto, it will be so construed as-to give effect to the intention indicated by the whole instrument. Solly v. Forbes, 4 Moore, 448. Thus if I have in D. black acre, white acre, and green acre, and I grant you all my lands in D., that is to say, black acre and white acre, yet green acre shall pass. Stukeley v. Butler, Hob. 172. When one, being the owner of three parcels of land described in a certain deed conveying them to him, made a deed of conveyance of 'three parcels or lots situated in P. and bounded as follows, to wit: The first beginning at, etc., [setting forth the boundaries of this lot only], being the same which was conveyed to me by deed,’ etc., referring to the deed describing the three lots, it was held that the deed conveyed all these parcels, and that to restrict it to one would be giving it an effect far short of what the words required. Child v. Ficket, 4 Me. 471. That all doubtful words and provisions are to be construed most strongly against the grantor is an ancient principle of the common law, which is recognized as a sound rule of .construction by modern jurists.”

The next, and a very striking case in support of our view, is Rutherford v. Tracy, 48 Mo., 325, 8 Am. Rep. 105, where the court said: “The language conveying the premises is as follows: ‘Lot No. 3, in block 87, in the old town of Hudson, now Macon, beginning at the northeast corner; thence west to the alley; thence south 18 feet, thence cast the length of the lot; thence north 18 feet to the beginning.’ (Note this description actually embraced a less area than lot 3.) The defendants now contend, and the court so instructed, that this description passed the fee to the whole lot. The old books contain a great deal of refined and technical learning on this subject. They say that, if there be two clauses or parts of a deed, repugnant the one to the 'other, the first part shall be received and the latter rejected, unless there be some special reason to the contrary; but, in the case of a will containing two repugnant clauses or parts, the first shall be rejected and the last received. That the first deed and the last will shall operate is an ancient maxim; Plowd. 541; Co. Lit., 112; Shep. Touch., 88. Upon the rales as laid down in the old authoi’ities, Judge Metcalf, in 23 American Jurist, makes some very sensible remarks. ‘In modern times,’ he says, ‘this maxim has very limited operation. A reason to the contrary is almost always found. The rules of construction, now applied in cases of repugnancy, give effect to the whole and every part of a will, deed, or other contract, when that is consistent with the rules of law and the intention of the party; and, when this is impossible, the part which is repugnant to the general intention, or to an obvious particular intention, is wholly rejected. Parts which were once regarded as repugnant are now deemed consistent.’ Greenleaf, in his edition of Cruise on Beal Property, lays down the doctrine that the modern rule is to give effect to the whole and every part of the instrument, whether it be a will or deed, or other contract; to ascertain the general intention, and permit it, if'‘agreeable to law, whether expressed first or last, to overrule the particular; and to transpose the words, whenever it is necessary, in order to carry the general intention plainly manifested into effect. 2 Greenleaf Cr. tit. ‘Deed,’ c. 12j § 26, note 1, and cases cited. Mr. Wash-bum declares that, when the parts of a deed are found inconsistent with each other, the courts will always give effect to every part of the deed, if it is possible, consistently with the rules of law. 3 Washb. Real Prop. 343. To the same purpose is the recent decision in this court in the ease of Campbell et al. v. Johnson, 44 Mo., 247. If there is an explicit and unambiguous grant of a thing, any exception or reservation which is manifestly contradictory will be rejected; but the intention must be sought after and carried out, if consistent with the rules of law. It is, however, well settled that a deed must be construed ex visceribus. The nature and quantity of the interest granted are always to be ascertained from the instrument itself, and fixed monuments always control courses and distances. The Supreme Court of the United States says that it is a universal rule that, whenever natural or permanent objects are embraced in the calls of a patent or survey, these have absolute control, and both course and distance must yield to their influence. Brown et al. v. Huger, 21 How. (U. S.), 306, 16 L. Ed., 125. In Lodge’s Lessee v. Lee, 6 Cranch (U. S.), 237, 3 L. Ed., 210, the description was, ‘All that tract or upper island of land called “Eden,” ’ and then to -it was added, ‘beginning at a maple tree,’ and describing the land conveyed by bounds, courses, and distances, but so as not to include all the island. The court held that the whole island passed. In Keith v. Reynolds, 3 Greenl. (Me.), 393, the description was, ‘A certain tract of land or farm in Winslow, included in the tract which was granted to Esq. Pattee,’ and afterward there was added a particular description of courses and distances, which did not include the whole farm. It was contended that the particular description should prevail, in preference to the other, which was more general and uncertain; but it was decided that the. first description was certain enough, and that it was to be adopted, rather than the description by courses and distances, which was more liable to errors and mistakes. In Jackson v. Barringer, 15 Johns. (N. Y.); 471, the grant was, ‘The farm on which J. J. I), now lives/ which was hounded on three sides, and ‘to contain 80 acres in one piece.’ The farm contained 149 acres, and the decision was that the whole farm passed. If a farm or tract of land is conveyed by general terms, an exception of any number of acres or any particular lot is not repugnant, but will be valid. A particular restriction may well consist with a general grant, and create no repugnancy. Did any facts exist in this case to show that the description of the lot by courses and distances was intended at the time to restrict or limit the quantity conveyed to a less area than the whole lot, we should unhesitatingly, in accordance with the liberal rules that have prevailed in modern times, give full force and effect to that intention. But there is nothing to manifest such intent. The _ granting clause in the deed is: ‘Lot 3, in block 87, beginning at the northeast corner; thence west to the alley; thence south 18 feet; thence east the length of the lot; thence north 18 feet to the beginning.’ The legal inference or presumption is that the grantor conveyed the whole lot, and attempted to give it a more particular description by bounding it with courses and distances. The designation of the lot by its number must be regarded as the prominent object or monument; and, where there is uncertainty, the monument must prevail over the description by courses and distances. There is nothing to show any reservation whatever, or that it was intended in the conveyance to carve out .any piece or parcel of the lot,. If A. sells to B. the farm on which he resides, and then goes on to describe the farm by courses and distances, and there is a mistake or erroneous description, the whole farm will nevertheless pass; because, in the case supposed, it was the manifest intention, gathered from the ■deed itself, to convey the whole farm. Had the grantor (the plaintiff in this case) in his deed used any apt or appropriate words showing that it was his intention to convey the whole lot, we should give them effect, without regard to any mere verbal arrangement or position they might occupy in the deed. But, as it is, without overthrowing well-established principles of law, we are not at liberty to construe the deed otherwise than as passing title to the whole lot.” All this fits in perfectly in this case at bar.

The last authority which we shall cite is the 13 Cyc., page 634, par. “h,” which is as follows: “A general description will not be limited by a particular one, where the latter follows in the sense of reiteration or affirmation. And, where by the granting clause in a deed a certain lot and block in a town is designated as the property intended to be conveyed, an intent to convey the whole lot will be presumed, although the description is followed by metes and bounds embracing an area less than the lot. Such a rule has also been affirmed where a deed grants an entire share under a decree of partition, all-of certain property, a whole farm, or land by name or by the number of a lot. So, where a description in a deed is a clear and complete one, a reference to other deeds will not operate to restrict the same.”

We think it is clear that the decree of the court below was correct, and it is affirmed.

Mayes, J., dissented.