Galbraith v. Lessee of Galbraith

3 Serg. & Rawle 392

• Court: Supreme Court of Pennsylvania
• Decided: September 29, 1817
• Status: Published

Opinion

The opinion of the Court was delivered by

Tilghman C. J.

Joint-tenancy is, at this day, so 'far

from being favoured, that the Courts think themselves justified in exercising their ingenuity against it. In most instances, it operates contrary to the opinion and intent of the parties. If the premises of this deed had contained the same words as the habendum, it could have been nothing else than a joint-tenancy. But, between the premises, and the habendum, there is a very material difference. The deed is inartificially drawn, but it is not difficult to perceive, that a several estate was intended. “ To them or any of them, “ their or any of their heirs/’ that is, them and each of them, their and each of their heirs ; any heir which either of them might have ; because, if either of them had an heir which took nothing, the word any would not be satisfied in its full extent. Ever since the case of Fisher v. Wigg, 1 P. Wms. 14, 1 Ld. Raym. 622, decided by Judges Gould and Turton, against the opinion of Holt, it has been considered, as well established, that in a deed operating by way of use, the intention of the grantor, though not expressed in technical words, should govern the nature and quality of the estate. That principle is decisive of the present case. But it is objected, that the habendum in this deed, shews an intent to give a joint-tenancy, and shall, therefore, controul the premises. I do not think, that such an intent can be clearly deduced from the habendum. It ought not to be supposed, that a man had different intentions in the same instrument. The different parts of the deed should, therefore, be so construed, as to preserve consistency throughout. Now, supposing an intent to give a tenancy in common, to be shewn in the premises, the words of the habendum, to them ■ and their heirs, may be understood, as referring to the premises, to them and their heirs as aforesaid, that is to say, to them or any of them, their or any of their heirs. This is much more rational, than to imagine, that the parties intended to undo in one part of the deed what had been done in another. There is no occasion, therefore, to consider, what may be the effect of the habendum, in cases where a different estate from that in the premises, is clearly given.

Upon the whole, there is enough appearing on the face of this deed, to satisfy me, that the parties intended a tenancy in common, and, therefore, I am of opinion, that the judgment should be affirmed.

Judgment affirmed.