Weber v. Nedin

210 Wis. 39

• Court: Wisconsin Supreme Court
• Decided: January 10, 1933
• Status: Published

Opinions

The following opinion was filed May 10, 1932:

Owen, J.

The plaintiff brings this action to clear her title to certain real estate of which her mother, Sophie Nagy, alias Sofi Nedin, died seized on the 20th day of December, 1924. Plaintiff’s mother obtained title to the premises in question by virtue of a deed executed by Henry Nehrbass and Hattie Nehrbass, his wife, to Tomas Nedin and Sofi Nedin on the 28th day of November, 1924. The opening recital contained in this deed reads as follows:

“This indenture, made this 8th day of November, A. D. 1924, between Henry Nehrbass and Plattie Nehrbass, his wife, of the city and county of Milwaukee, Wis., said Henry Nehrbass having obtained title while a widower, party of the first part, and Tomas Nedin and Sofi Nedin, his wife, and to the survivor of either, of the same place, parties of the second part.”

The granting clause of the deed conveys the premises described to “the said parties of the second part, their heirs and assigns forever.” The plaintiff claims title to the premises as the sole heir at law of her mother, Sophie Nagy, alias Sofi Nedin, one of the grantees of said deed. The defendant Tomas Nedin claims title to the premises as the survivor of Sofi Nedin, with whom he claims he acquired title to the said premises in joint tenancy. The question presented is whether the deed under which Tomas and Sofi acquired title created a joint tenancy or a tenancy in common.

The complaint alleges that while Tomas and Sofi cohabited together as husband and wife they were never married, and at the time of the commencement of their illicit relations the said Sofi had a husband living. The rule of construe-tron prescribed by sec. 230.44, Stats., that “All grants and devises of land made to two or more persons, except as provided in section 230.45, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy,” therefore applies. The deed is to be construed to create an estate in common unless the deed expressly declares the estate created to be one in joint tenancy. The appellant contends that this deed does so declare. This contention is based upon the phrase in the deed “and to the survivor of either” found in the opening recital above set forth. He contends that the use of this phrase in said recital indicates an intention that the premises should go to the surviving grantee, which is an incident of joint tenancy.

It is well understood that a deed, like any other writing, is to be construed to effectuate the intention of the parties. Jones v. Hoffman, 149 Wis. 30, 134 N. W. 1046; Barkhausen v. Chicago, M. & St. P. R. Co. 142 Wis. 292, 124 N. W. 649, 125 N. W. 680, and numerous cases there cited. As was said in Chicago, M. & St. P. R. Co. v. H. W. Wright Lumber Co. 123 Wis. 46, at p. 50 (100 N. W. 1034): “As in case of wills, the all-dominating rule is to ascertain what the parties intended, and to give effect to it. To this end no single sentence or paragraph stands by itself, but the whole instrument must be read together, and, if possible, a purpose ascribed to each part thereof which is consistent with every other part. . . . It is only when it is found impossible to give a meaning to one part consistent with any other that repugnancy exists, and the duty arises to choose as to which phrase shall exclude the other.” If we give to the phrase “and to the survivor of either” where it is found in the opening recital of the deed all of the force which the defendant claims should be accorded to it, we find that it is utterly repugnant to- the provisions of the granting clause which conveys the premises to the grantees, “their heirs and assigns forever.” These two provisions of the deed cannot he reconciled so that effect can be given to either consistent with the effect that must be given to the other. The question then is, which of two repugnant provisions shall prevail? It is a rule of quite general if not universal recognition that the granting or conveying portions of a deed, when clear and unambiguous, shall control over other words or phrases in the introductory or other part of a deed. Fries v. Kracklauer, 198 Wis. 547, at p. 551 (224 N. W. 717), and cases there cited. As this deed expressly grants the premises to the parties of the second part, their heirs and assigns forever, this expressed and unambiguous provision must prevail over the mere use of the phrase “to the survivor of either” in the recital and in a connection in which it has no sensible meaning. The deed must be construed as one creating a tenancy in common and, accordingly, the demurrer to the complaint was properly overruled.

By the Court. — Order affirmed.

The following opinion was filed January 10, 1933 :