Á.SHE, J.,
(after stating the facts as above). The first poiut presented for our consideration, is the proposition contended for by the plaintiffs’ counsel, “that the act of 1784 abolished theyws
accresc.endi
in joint estates, and that there is no such thing recognized by our law, as survivorship.” But this is a mistake. Joint tenancies were not abolished by the act of 1784.
Vass
v.
Freeman,
3 Jones Eq., 227, and
Powell
v.
Allen,
75 N. C., 450-454.
In the latter case, it was held that the act did not abolisli joint tenancies, but only took away from such estates, held in fee, the right of survivorship, and that the act had no application to joint estates for life, nor did it have any application to estates given to husband and
wife
— Den
ex demise Motley
v.
Whitemore, 2
D. & B., 537 — and the reports are full of cases where this Court has given effect to the term
survivor
in numerous cases, and especially in Vass v.
Freeman, supra, Southerland
v.
Cox,
3 Dev., 394;
Murchison
v.
Whitted,
87 N. C., 465. We have cited .these cases, and we might refer to others, where the word
sur
vivor
is used, without being affected by the act of 1784. The term has all the signification aud effect since that act that it had before, except in its application to joint tenancies held in fee.
We would not have noticed this subject, if it had not been seriously argued before us, for we think it has no application whatever to this case. The estate created by the deed of J. S. Rowland to Ophelia and John B. Rowland, created in them, by its-express terms, a tenancy in common, and the Court cannot in their construction of deeds, do violence to these clearly expressed terms, even for the purpose of effectuating the known intentions of the grantor.
We must assume that the deed was duly registered, as there was no objection to its being offered in evidence.
In the deed in question, the estate is given to John B. and Ophelia Rowland, and to the heirs of each of them; and then follows, after a description of the land, the words “ to have and to-hold the same to the said John B. Rowland and Ophelia Rowland and their heirs as aforesaid, as tenants in common; and upon the death of either one, then to the survivor and his or her heirs.”
In the interpretation of a deed, the first thing to be considered is, to ascertain the intention of the parties, and give it such a construction as will carry out their intention, so far as it can be done consistently with the established rules of law. In
Kea
v. Roberson, 5 Ired. Eq., 373, this Court said, “Courts are always-desirous of giving effect to instruments according to the intention of the parties, as far as the law will allow. It is so just and reasonable that it should be so, that it has long grown into a maxim that favorable constructions are put upon deeds.”
“
Intentio inservire, debet
lecjibus,
non legis intentioni,”
and as far as it may stand with the rule of law, it is honorable for all Judges to judge according to the intentions of the parties, and so they ought to do — 1 Coke, p. 19 — and Justice Blackstone in the rules of Interpretation laid down by him, 2 vol,, 286, says: “That the construction be made upon the entire deed, and not
merely upon the disjointed parts of it.
Nam ex antecedentibus, et consequentibus fit optima interpretatio,
and therefore that every part of it (if possible,) be made to take effect, and no word but what may operate in some shape or
other
— Nam
verba debent in-telligi cum effeetce ut res mag is valent quam pereat.”
And in
Jackson
v.
Blodgett,
16 Johnson, 172, the same rule is announced, “that the construction must be made on the entire instrument, after looking, as the phrase is, at the four corners of it.” See also, 2 Smith’s Leading Cases, 466, where numerous authorities are cited upon the subject.
Construing the deed, then, according to the intention, it would seem to follow, that it should be read ns giving the laud to Ophelia and J. B. Rowland and the heirs of each, as tenants in common, and if either should die, then to the survivor and his or her heirs. This would be effectuating the intention of the donor; for the declared purpose of the deed was to provide a home for his blind and helpless daughter, and for the benefit of his son John, to the exclusion of his other children.
In any event, the estate was secured to her for life, and if she had survived John, she would have had the entire estate in fee, if the limitation to the survivor can be sustained upon auy principle of law.
The plaintiff'contends it cannot, and insists that whatever may have been the intention of the donor, it is controlled by the wording of the instrument, and that the construction contended for by the defendant, would contraveue a well established rule of construction, that when an estate is given in fee in the premises, it cannot be affected by an
habendum,
which is repugnant to the premises, and that there is such a repugnancy in this case, between the premises and
habendum,
and that being so, the
habendum
is nugatory, and an absolute estate in fee in common was vested in J. B. Rowland and Ophelia, and upon her death her moiety went to John B. Rowland and her other brothers and sisters.
In this view of the effect of an
habendum
in a deed, we do not concur, and although Judge Kent has said it has degene
rated into a useless form, there are other very high authorities who sustain its operations. For instance, Judge Blackstoxe iu his Commentaries, vol. 2, p. 298, has said: “That the office of the
habendum
is to lessen, enlarge, explain, or qualify the premises, but not to contradict or be repugnant to the estate granted in the premises.” And to illustrate what is meant by the repugnancy which will render the
habendum
nugatory, he puts the case where, in the premises, the estate is given to one and his heirs,
habendum
to him for life, for an estate of inheritance is vested in him before the
habendum
comes, and shall not afterwards be taken away and divested by it.
But in Shepherd’s Touchstone, p. 200, it is laid down, that “if the
habendum
is to the grantee, to him for the life of another, there would have been no repugnancy, for then the
habendum
is consistent with the grant, and explains it, since the word heirs still have effect.” For where an estate is given to one and his heirs for the life of another, the heir may lake and hold after , the death of his ancestor as a special occupant. The rule of construction in such cases is held to be, that when the estate is given in the premises to one and his
heirs
generally,
habendum to
him and other heirs, the
habendum
may be used to explain the premises, by showing what
heirs ave
Free access — add to your briefcase to read the full text and ask questions with AI
Á.SHE, J.,
(after stating the facts as above). The first poiut presented for our consideration, is the proposition contended for by the plaintiffs’ counsel, “that the act of 1784 abolished theyws
accresc.endi
in joint estates, and that there is no such thing recognized by our law, as survivorship.” But this is a mistake. Joint tenancies were not abolished by the act of 1784.
Vass
v.
Freeman,
3 Jones Eq., 227, and
Powell
v.
Allen,
75 N. C., 450-454.
In the latter case, it was held that the act did not abolisli joint tenancies, but only took away from such estates, held in fee, the right of survivorship, and that the act had no application to joint estates for life, nor did it have any application to estates given to husband and
wife
— Den
ex demise Motley
v.
Whitemore, 2
D. & B., 537 — and the reports are full of cases where this Court has given effect to the term
survivor
in numerous cases, and especially in Vass v.
Freeman, supra, Southerland
v.
Cox,
3 Dev., 394;
Murchison
v.
Whitted,
87 N. C., 465. We have cited .these cases, and we might refer to others, where the word
sur
vivor
is used, without being affected by the act of 1784. The term has all the signification aud effect since that act that it had before, except in its application to joint tenancies held in fee.
We would not have noticed this subject, if it had not been seriously argued before us, for we think it has no application whatever to this case. The estate created by the deed of J. S. Rowland to Ophelia and John B. Rowland, created in them, by its-express terms, a tenancy in common, and the Court cannot in their construction of deeds, do violence to these clearly expressed terms, even for the purpose of effectuating the known intentions of the grantor.
We must assume that the deed was duly registered, as there was no objection to its being offered in evidence.
In the deed in question, the estate is given to John B. and Ophelia Rowland, and to the heirs of each of them; and then follows, after a description of the land, the words “ to have and to-hold the same to the said John B. Rowland and Ophelia Rowland and their heirs as aforesaid, as tenants in common; and upon the death of either one, then to the survivor and his or her heirs.”
In the interpretation of a deed, the first thing to be considered is, to ascertain the intention of the parties, and give it such a construction as will carry out their intention, so far as it can be done consistently with the established rules of law. In
Kea
v. Roberson, 5 Ired. Eq., 373, this Court said, “Courts are always-desirous of giving effect to instruments according to the intention of the parties, as far as the law will allow. It is so just and reasonable that it should be so, that it has long grown into a maxim that favorable constructions are put upon deeds.”
“
Intentio inservire, debet
lecjibus,
non legis intentioni,”
and as far as it may stand with the rule of law, it is honorable for all Judges to judge according to the intentions of the parties, and so they ought to do — 1 Coke, p. 19 — and Justice Blackstone in the rules of Interpretation laid down by him, 2 vol,, 286, says: “That the construction be made upon the entire deed, and not
merely upon the disjointed parts of it.
Nam ex antecedentibus, et consequentibus fit optima interpretatio,
and therefore that every part of it (if possible,) be made to take effect, and no word but what may operate in some shape or
other
— Nam
verba debent in-telligi cum effeetce ut res mag is valent quam pereat.”
And in
Jackson
v.
Blodgett,
16 Johnson, 172, the same rule is announced, “that the construction must be made on the entire instrument, after looking, as the phrase is, at the four corners of it.” See also, 2 Smith’s Leading Cases, 466, where numerous authorities are cited upon the subject.
Construing the deed, then, according to the intention, it would seem to follow, that it should be read ns giving the laud to Ophelia and J. B. Rowland and the heirs of each, as tenants in common, and if either should die, then to the survivor and his or her heirs. This would be effectuating the intention of the donor; for the declared purpose of the deed was to provide a home for his blind and helpless daughter, and for the benefit of his son John, to the exclusion of his other children.
In any event, the estate was secured to her for life, and if she had survived John, she would have had the entire estate in fee, if the limitation to the survivor can be sustained upon auy principle of law.
The plaintiff'contends it cannot, and insists that whatever may have been the intention of the donor, it is controlled by the wording of the instrument, and that the construction contended for by the defendant, would contraveue a well established rule of construction, that when an estate is given in fee in the premises, it cannot be affected by an
habendum,
which is repugnant to the premises, and that there is such a repugnancy in this case, between the premises and
habendum,
and that being so, the
habendum
is nugatory, and an absolute estate in fee in common was vested in J. B. Rowland and Ophelia, and upon her death her moiety went to John B. Rowland and her other brothers and sisters.
In this view of the effect of an
habendum
in a deed, we do not concur, and although Judge Kent has said it has degene
rated into a useless form, there are other very high authorities who sustain its operations. For instance, Judge Blackstoxe iu his Commentaries, vol. 2, p. 298, has said: “That the office of the
habendum
is to lessen, enlarge, explain, or qualify the premises, but not to contradict or be repugnant to the estate granted in the premises.” And to illustrate what is meant by the repugnancy which will render the
habendum
nugatory, he puts the case where, in the premises, the estate is given to one and his heirs,
habendum
to him for life, for an estate of inheritance is vested in him before the
habendum
comes, and shall not afterwards be taken away and divested by it.
But in Shepherd’s Touchstone, p. 200, it is laid down, that “if the
habendum
is to the grantee, to him for the life of another, there would have been no repugnancy, for then the
habendum
is consistent with the grant, and explains it, since the word heirs still have effect.” For where an estate is given to one and his heirs for the life of another, the heir may lake and hold after , the death of his ancestor as a special occupant. The rule of construction in such cases is held to be, that when the estate is given in the premises to one and his
heirs
generally,
habendum to
him and other heirs, the
habendum
may be used to explain the premises, by showing what
heirs ave
meant by the grantor, and will not be repugnant — for such explanation is held not to retract the gift in the premises, because the word heirs has still its operation, and by construction, is more conformable to the will and intentions of the donor. This rule of interpretation is clearly announced in Bacon’s Abridgment, vol. 1, pp. 434-5, citing in support of the position, Rolle Abr., 838; Coke Lit., 21a, Bro. Tit. Fact, 20; Shepherd’s Touchstone, 200.
But after giving effect to the operation oí' the
habendum
as maintained by the authorities cited, the question is still presented, does the estate, upon the death of Ophelia, pass to tiic
suroioor,
or go to her heirs generally?
We are of the opinion it did pass to John B. Rowland as
survivor,
by the operation of a shifting use.
The deed is a covenant to stand seized to uses. Its effect was to transfer the use to the two donees in fee, and upon the death of Ophelia, to shift the use of her moiety to John and his heirs. By a shifting use, a fee may be limited after a fee. 2 Blackstone, p. 334;
Smith
v.
Brisson,
90 N. C., 284; aud cases there cited, especially, 2 Minor Inst., 265, and Hargrove’s note “A,” 2 Coke, 271b.
But it may be objected, that as the deed is one operating under the statute of uses, no further use can be raised by it, for a use cannot be limited on a use. To this, we have to say, that since the year 1715, our courts have been gradually receding from the rules of the common law in the construction of deeds.
By the act passed that year, it was enacted that the registration of deeds should pass lauds without livery of seizin. The construction first put upon this act was, that it only applied to such deeds as operated at common law by livery of seizin.
Hogan
v.
Strayhorn,
65 N. C., 279. But our courts, in their policy of relaxing the rigid and technical rules of the common law, have since extended the construction so as to bring all of our deeds of conveyance within the purview of that statute. Thus it has been held, that deeds of bargain and sale and covenants to stand seized to uses, are put on the same footing with feoffments at common law, with respect to seizin, the declaration of uses thereon, and the consideration.
Love
v.
Harbin,
89 N. C., 249, and
Ivy
v.
Granberry,
66 N. C., 223.
Prior to that statute, aud the more recent interpretation upon it, if there was a deed of bargain aud sale upon a consideration, the consideration raised a nse for the bargainee, and then the statute transferred the legal estate to the use, that is, to the bar-gainee, but no further use could be declared by the deed, for it was held a use could.not be mounted upon a use. But there is no reason now why it may not be done, since the registration of the deed has all the effect of livery of seizin.
Our opinion is, a defeasible fee in common was given to Ophelia Rowland and John Rowland, and upon the death of Ophelia, the absolute fee vested in John as survivor, because such was the manifest intention of the donor, and because that construction is not in violation of any principle of law or rule of construction.
There is error. The judgment of the Sujierior Court is reversed. The demurrer must be overruled, and the case remanded, that further proceedings may be had, if the parties shall be so advised.
Error. Remanded.