
    William S. Wood v. Walter W. Taylor.
    (New York Superior Court—Special Term.
    September. 1894.)
    Where there is an irreconcilable inconsistency between the granting clause of a deed and the habendum, the habendum must yield.
    The granting clause of a deed purported to convey the entire fee of the premises, but the habendum stated that the grantee was to hold for and during his natural life only, and at his death the property should go to his-lawful heirs; but in case of his death without lawful issue it should revert to the grantor, his heirs and assigns. The grantee never had issue. Held, that the words “ lawful heirs ” meant the- grantee’s lawful children; that there being no person in being at the delivery of the deed answering to the description of lawful issue who would have been entitled to immediate possession if the grantee had then died, the limitation over was void; that the habendum clause was repugnant to and irreconcilably inconsistent with the granting clause, and that, therefore, the conveyance was.of the entire fee.
    Demurrer to answer.
    The case comes up as an issue of law on the demurrer interposed by the plaintiff to the answer of the defendant.
    The action is for the specific performance of a contract for the purchase of real estate by the defendant from plaintiff, and the question involved is whether the plaintiff had a good and marketable title. The facts as to the title are set up in the answer demurred to, and are briefly as follows :
    The plaintiff derived whatever title he had to said premises from his father, James Wood, who conveyed the same to him by a full covenant warranty deed, a copy of which is set forth in the answer.
    The habendum clause is as follows:
    “ To have and to hold the above-granted, bargained and described premises with the appurtenances unto the said party of the second part, for and during the term of his natural life only, and at his decease then to go to his own lawful heirs, to and for their own proper use,, benefit and behoof forever, but, in case of his death without lawful issue, then, said property conveyed is to revert back to said party of the first part, his heirs and assigns.”
    The plaintiff conveyed said ¡premises back to his father by a deed absolute on its face and making no reference whatever to the life estate. Plaintiff’s father died seized of whatever title became vested in him by said deed, leaving a will by which he devised his residuary estate, including said premises, to be equally divided between the plaintiff and his widow, Elizabeth Wood. The parties partitioned between themselves, and Elizabeth Wood conveyed the premises to the plaintiff by a full covenant warranty deed. The plaintiff is married and never had any children or any brothers or sisters, except such brothers or sisters as are long since deceased, and who died without leaving any descendants, and his mother is dead. When James Wood died William Gr. Wood was his only heir at law, and the heirs at law of the plaintiff were a large number of cousins, children of deceased brothers and sisters.
    
      Jas. C. De la Mare, for plaintiff.
    
      Arthur W. Birkins, for defendant.
   McAdam, J.

James Wood, in 1872, conveyed the premises in question to his son, William Gr. Wood, and to his heirs and assigns forever, by a warranty deed in the usual form purporting in the ¡Dremises or granting clause to convey the entire fee, but with an habendum clause reading as follows: “To have and to hold the above-granted, bargained and described premises with the appurtenances unto the said party of the second part, for and during the term of his natural life only, and at his decease then to go to his own lawful heirs, to and for their own proper use, benefit and behoof forever; but, in ease of his death without lawful issue, then the said property conveyed shall revert back to said party of the first part, his heirs and assigns forever.” The plaintiff, the grantee, afterwards, in Í883, by a quit-claim deed, conveyed the same premises back to his father, the grantor. His father died after that, leaving a will by which he devised all his real estate to the plaintiff and Elizabeth Wood, the plaintiff’s mother, to be equally divided between them, and then Elizabeth Wood conveyed to the plaintiff all her interest in the property in -question, and has since died. The plaintiff has a wife, but has never had any children.

Assuming to be the owner of the land in fee simple, he made an agreement with the defendant to sell it to him, and the defendant now refuses to take title on the ground that, as he claims, the plaintiff has only a life estate in the premises, and that, in case of his death, leaving a child or children, the title would vest in them, or that there is now a vested remainder in the heirs at law of the plaintiff.

In this he is mistaken. It is clear from the language of the habendum clause, particularly taken in connection with the premises or granting clause, that by the words “ his own lawful heirs” the grantor meant children of the grantee, the grantee’s own lawful children. In no other way can the different parts of the habendum be reconciled or made consistent. He clearly desired and intended to say that his son should have the land during his life, and then at his death that it should go to his son’s children, if he had any, but if he had none, then that it should come back to himself, the grantor, and he evidently supposed that the words he used were appropriate words to accomplish that purpose. It is no uncommon thing for such blunders to be made nor for courts to construe the word heir ” to mean child,” and to so read a deed or will. Scott v. Guernsey, 48 N. Y. 106, 107, 122; Heath v. Hewitt, 127 id. 166. The deed, or rather the habendum clause, then, if it is to have any effect, should be read as giving the land to the plaintiff for and during the term of his natural life, and then at his death to go to his children, if he has any, and if not, then to revert to the grantor. So construing the deed, and assuming that the habendum qualifies and describes the estate granted in this case, if the plaintiff, at the time of the delivery of the deed, had had a child living, the child would then have been vested with an estate in remainder in fee, as there would then have been a person in being who would have been entitled to immediate possession on the termination of the intermediate estate, that is, if his father had then died. 1 E. S. 723, § 13. This is assuming that the estate of the plaintiff was only a life estate. But as the plaintiff had no child or children at the time of the delivery of the deed, and holding, as we must, that the word “ heirs ” in the habendum clause should be read “ child ” or children ” or “ heirs of the body,” it is not clear that the limitation in the habendum has any validity. Where, as in this case, the grantor, by the principal or granting clause called the premises, conveys or uses words purporting to convey his entire estate, there must be some person in being in whom, on the delivery of the deed, the entire estate vests. The fee cannot be in abeyance. Billings v. Baker, 28 Barb. 367. It cannot swing in abeyance to await the coming of some one into being in whom the title may vest. Henderson v. Henderson, 113 N. Y. 2.

A conveyance to a grantee and his heirs gives to the grantee a fee. But a conveyance maybe to a grantee for life and the remainder to his heirs, and be good as a conveyance of a remainder to the heirs, if, at the time of the delivery of the deed, there are then persons in being who, if the grantee should die, would be his heirs. Such was the case of Moore v. Littel, 41 N. Y. 66.

In such a case, there being a person in being at the time of the delivery of the deed who' would take and be entitled to immediate possession oL the life estate, the grantee under our statutes since the abrogation of the rule in Shelley’s case would take but a life estate. Sheridan v. House, 4 Keyes, 569. In this case, the remainder by the terms of the habendum is limited to the issue, the children or heirs of the body of the grantee, and at the time of the delivery of the deed there were none such, nor has there ever been any.

There was no person in whom the remainder vested or could vest, and as the fee must always be in some one, the,fee either vested in the grantee or it never passed out of the grantor. The deed in this, case, if the habendum is to have effect, instead of being a conveyance to the grantee and his heirs, which would have given him a fee, is a conveyance to the grantee for life and at. his death to certain designated heirs, or rather heirs of his body, which, prior to the statute abolishing entails, would have created an estate tail, but which now by our statutes is converted into a fee simple. 1 R S. 722, § 3. By that statute the fee in such a case is not vested in the grantee or first taker, but in the tenant in tail, the one who takes after the determination of the life estate. Wendell v. Crandall, 1 N. Y. 491; Jenkins v. Fahey, 73 id. 364; Barker v. Cary, 11 id. 397; Van Rensselaer v. Poucher, 5 Den. 35. But that is only in cases where a valid remainder is limited on the intermediate estate; where it is not, the grantee of the life estate takes the fee. 1 R. S. 722, § 3. In this case there was no child of the grantee in existence when the deed was delivered, and no valid remainder was limited on the estate granted; and certainly, if the limitation in the habendum is void, then by the terms of the deed as expressed in the granting clause the grantor conveyed his entire estate to the grantee. There are two reasons for so considering and holding it void; one is that by the premises or granting clause in the deed the grantor conveys, or uses language appropriate to convey, the entire fee; and the other is that there was no person in being in whom the remainder could vest at the time of the delivery of the deed.

Ordinarily, if there is an irreconcilable inconsistency between the premises or granting clause in a deed and the habendum (which is not essential to the validity of a deed), the habendum must yield. Greenleaf’s Cruise Real Prop. tit. 32, p. 273, §§ 75, 76 ; 2 Wash. Real Prop. (2d ed.) 691 (644), § 63 ; Mott v. Richtmyer, 57 N. Y. 49, 63. Such appears to be this case. By the premises or granting clause in the deed,- it is a conveyance in fee simple to the grantee, his heirs and assigns forever. If by the premises or granting clause the conveyance had been to the grantee and his heirs, and in the habendum it had been limited to the grantee for life, and at his death to the heirs of his body, as it is, it would have been what prior to the abolition of entails was an estate tail.

The habendum in that case would but have described the particular heirs before mentioned in the granting clause, and the premises and the habendum might thus be reconciled, and the deed held good as a conveyance to the first taker for life, and of the remainder to the designated heirs. Mott v. Reichtmyer, 57 N. Y. 63 ; Tyler v. Moore, 42 Penn. St. 386. But that could be so under our statutes only in case the grantee had such heir of his body at the time of the delivery of the deed. It was different under the common law before the abolition of entails, when the grantee or first taker had or might have a fee. called a determinable fee.

The difficulty in this case lies in the fact that the grantee had no child or heirs of his body, at the time of the delivery of the deed, in $hom the fee could vest, and as the premises or granting clause cannot be entirely disregarded, the only way to give effect to the deed is to hold the habendum clause void. It is then a conveyance of the entire fee to this plaintiff, the grantee, who got thereby a complete title, and who, by a conveyance to his father, and by the devise and subsequent conveyance to him before mentioned, became reinvested with the title, and when the contract with the defendant was made he had a "good title in fee simple. That being the case, the defendant has no legal excuse for refusing to take title. If these views are correct, there is no occasion for considering the other questions.

There was no suspension of the power of alienation beyond two lives in being. If there was any suspension at all, it was only for the life of one person, the plaintiff. But if there had been, and the deed had been void for that reason, the subsequent devise and deed would have given him a complete title, freed from all the other objections based upon the first deed. The provision in the habendum for a reversion to the grantor in case of the failure of issue of the grantee is void if the limitation over to the possible heirs of the ■ body of the grantee is void, or if by the premises or granting clause the grantor conveyed, as the deed purports to, the entire fee. A reversion is the residue of an estate left to the grantor or his heirs commencing in possession on the determination of a particular estate granted or devised (1 R. S. 123, § 12), and it necessarily assumes that the grantor has not parted with his entire estate. 4 Kent’s Comm. 358. As the grantor in this case parted with his entire estate, of course there could be no reversion. The conclusions are that by the words in the habendum, “ his own lawful heirs,” the grantor meant “ the grantee’s own lawful children,” and that, taken in connection with the rest of the habendum, it will bear no other construction and must be so read; also, that as there was no person in being at the time of the delivery of the deed answering to the description of his lawful issue ” who would have been entitled to immediate possession in case the grantee had then died, the limitation over to the grantor’s lawful issue is void; that the habendum is repugnant to and irreconcilably inconsistent with the premises or. grant of the fee to the grantee, and that by the premises or granting clause in the deed the conveyance to the plaintiff was of the entire fee, and consequently that the plaintiff is entitled to judgment on the demurrer.

Judgment for plaintiff.  