
    Beulah Tyer v. Richard A. Lilly et al.
    Deeds. Construction. Qranxtees.
    
    
      A deed, inártíficially and carelessly drawn, made to a person designated by name (who at its date had one child), and his children, as parties of the second part, and which granted the land ‘ ‘ to the party of the second part and Ms heirs and assigns,” with huben-. dum “to have and to hold nnto the party of the second part, their heirs and assigns,” conveyed the land jointly to the grantee designated-by' name and his child.
    From the chancery court of .Pontotoc county.
    Hon. Henry L. Muldrow, Chancellor.
    Mrs. Tyer, appellant, was complainant in the court below; Lilly and another, appellees, were defendants there. From a decree in defendants’ favor the complainant appealed to. the supreme court. The facts are stated in the opinion of the court.
    
      Mitchell (& Fletcher, for appellant.
    If the deed really conveys the land to C. J. Bolen and children, its effect is to render C. J. Bolen and complainant tenants in common of the forty acres in controversy, — as much so as if it had been to C. J. Bolen and Beulah Bolen by name ; it being admitted that complainant was the only child in. esse when the deed was made. Brabham v. Bay, 75 Miss., 923 (23 So., 578). We cheerfully concede the well established rule of law in this state, that, where there is an irreconcilable conflict between the granting clause and the other parts of the deed, the granting clause will prevail, where its meaning is clear and unambiguous. We do not question the authority of Robinson v. Payne, 58 Miss., 690, nor of Dunbar v. Aldrich, 79 Miss., 698 (31 So., 341). Indeed, .we invoke the authority of these cases, as lending support to our contention, for in both cases the court is at pains to say that the clauses must be clearly irreconcilable, and the meaning of the granting clause must be clear and unambiguous. In the Robinson case the granting clause clearly created an estate in fee-simple, and the habend/um clearly created a life estate. The clauses could not be reconciled, and the granting clause, being of superior dignity, prevailed. But the court says 4 4 that it gives way, as all rules of construction must, where there is one clear and unmistakably expressed intention.” So in the Dunbar case the conflict between the granting clause and the recitals is sharp and clearly defined. Where the deed conveyed land to Ida Y. Lee and children forever, and for her own benefit and behoof, it was held that Ida Y. Lee and children took the land as tenants in common. Moore v. Lee (Ala.), 17 So., 15. If certainty .appears in a deed, that part which is certain must be referred to, to explain what is indefinite, and in this connection the recitals in the premises of a deed are important to explain the motives and reasons upon which the deed is founded. Williams v. Claiborne, 7 Smed. & M., 488. All parts of the deed should be construed together, so as to harmonize the parts, and derive from the whole instrument the intention of the grantor. Goosey v. Goosey, 48 Miss., 210. See, especially, the well considered case of Hart v. Gm'dner, 74 Miss., 153 (20 So., 877.), and authorities cited. For construction of a deed somewhat similar to this, see King v. Stolces, 125 N. C., 514 (34 S. E., 641). The word 44parties,” in the granting clause, with the additional designation contained in the premises. Schulz v. Rrohl, 116 Mich., 603 (74 N. W., 1012). Where the granting clause entirely omits the name of the grantee, it may be supplied by reference to other parts of the deed. Ray v. Posner (Md.), 26 Atl., 1084. All parts of a deed must be given effect, if possible, and all parts are to be construed together. Lowdermilky. Bostick, 98 N. C., 299 (8 S. E., 844); Jones v. Pashby, 62.Mich., 614 (29 N. W., 374); Grueber v. Lindenmeier, 42 Minn., 99 (43 N. W., 964); Robinson v. Missisguoi R. Go., 59 Vt., 426 (10 Atl., 522); Richter v. Richter, 111 Ind., 456 (12 N. E., 698); Lehndorf v. Cope, 122 111., 317 (13 N. E., 505); Case v. Dexter, 106 N. Y., 553 (13 N. E., 449); Smithy. Packhurst, (1 Atl. Rep., 136); Zñmmer v. Miller, 64 Md., 296 (1 Atl. Rep., 858); Henderson y. Mack, 82 Ky.,' 379; Same v. Sawyer, 99 Ga., 234 (25 S. E., 312); Cornell V. Green (C. C.), 88 Fed., 821; Adams y. Higgins, 23 Fla., 13(1 So., 321); Lemon v. Graham, 131 Pa., 447 (19 Atl., 48; 6 L. R. A., 663). It is clear that Brantley Bolen intended to give complainants an interest in the lands. •
    
      Anderson db Long, for appellees.
    Whether there is a discrepancy or repugnancy between either the recitals in the preamble of the deed, or the habendum clause, or both, on the one hand, and the granting clause, on the other, the latter will control. Robinson v. Payne, 58 Miss., 690; Miller v. Tunica County, 67 Miss., 651 (7 So., 429); Dwnbar v. Aldrich, 79 Miss., 698 (31 So., 341). We contend that, taking the deed as a whole, it clearly appears “children” is used as a term of limitation, and not of purchase. The most reasonable and only consistent construction is that “ children” is used as synonymous with “heirs.” The term “ their heirs,” used in the habendum, could refer, without doing very great violence to the language, to the heirs of C. J. Bolen. We concede that the term ‘‘ children’ ’ is a word of purchase, ordinarily used, but where it is necessary to give effect to, the instrument, or where there are other words showing that “ children” was used in the sense of “ heirs,” the term will be construed as a word of limitation, equivalent to “heirs,” etc. Yol. 5, Am. & Eng. Ency. Law (2d ed.), 1903; Jordan v. Roach, 32 Miss., 482. If the deed was of doubtful meaning, parol testimony was admissible to show such relation of the parties to each other, and the subject-matter and the surrounding circumstances, as adds to the interpretation of the language employéd, so as to ascertain the intent; and, where the language used is susceptible of different meanings, it is competent to inquire what the parties understood it to mean. See digest of authorities in Brame & Alexander’s Digest, p. 502, sec. 104; Schlottrnan v. Hoffman, 73 Miss., 188 (18 So., 893; 55 Am. St. Rep., 527); Tufts v. Creenewald, 66 Miss., 360(6 So., 156). If we are right in this contention, it seems to us the intention of the grantor is clear.
    
      Fontaine da Fontaine, on the same side.
    Appellant has no interest in the land. The deed from B. Bolen, under which she claims title, filed as an exhibit with her bill, conveys the fee-simple title to said land to C. J. Bolen, her father. Dwnbar v. Aldrich, 79 Miss., 698 (31 So., 341). While it is true there, is a discrepancy between the .recitals in the preamble and the granting clause and between the habenckim and the granting clause in the deed, the granting clause in the deed is both clear and unambiguous, and prevails. Miller v. Tunica Comity, 67 Miss., 651 (7 So., 429); Robinson v. Pcn/ne, 58 Miss., 690. It is a settled rule of construction that the meaning or intention of the grantor is not the object sought, but what is the meaning of the words used in making the grant, and especially is it a rule of interpretation of a deed that an intention manifested in the recitals of a conveyance will be controlled by the terms of the granting clause of the deed; and, when the words in the granting part are clear and unambiguous, they cannot be controlled by the recitals or other parts of the deed. Dunbar v. Aldrich, supra. There is no ambiguity in the granting .clause in the deed. It conveys to the party of the second part, and to his heirs and assigns, the land in fee-simple.
   Calhoon, J.,

delivered the opinion of the court.

The whole contention for appellees is based on the force and effect of the solitary word £ ‘ his ” in a deed. This instrument, with the words of it pertinent to the question italicized by us, is as follows:

1 £Brantley Bolen to C. J. Bolen and Children :

£ £ This indenture made on the third day of February A.D. one thousand eight hundred and eighty two, and between Brantley Bolen, of Pontotoc county, party of the first part, and C. J. Bolen and children, parties of the second part, witnesseth: That the said party of the first part in consideration of the sum of Five hundred dollars to him paid by .the said party of the second part, the receipt of which is hereby acknowledged do by these presents, grant bargain, and sell, convey and convey and confirm unto the pw'ty of the second part, his heirs and assigns, the following described lots, tracts or' parcels of land, lying and being situated in the county of Pontotoc, State of Mississippi, known as described as follows: West half of the North East quarter of section five, Township nine, Range four E, to have and to hold the premises aforesaid with all the rights title privileges appurtenances and immunities thereof belonging, or in any wise appertaining both at law and equity, unto the said party of the second part and unto theirs heirs, executors and administrators and the said party of the first part for his heirs, executors and administrators do hereby covenant and agree with the said party of the second part, theirs heirs and assigns and the said party of the first part will warrant and defend the title to the said premises unto the said party of the second part and unto theirs heirs and assigns forever, against the lawful claims and demands of all persons whomsoever except on account of taxes after the 1st of January 1882. In witness whereof the said party of the first part hath hereunto set his hand and seal the day and year first above written. [Signed] B. Bolen. ’ ’

When this deed was executed the grantee, C. J. Bolen, was the father of one child, Beulah, the appellant here, who was a minor then, and still is a minor, and now the wife of R. L. Tyer. More than eleven years after its execution, and on December 23, 1893, C. J. Bolen alone conveyed the land in controversy, with general warranty, to E. Gr. Lilly & Son, the appellees. In 1901 Mrs. Tyer, by her husband, as next friend, filed her bill in equity against appellees, claiming an undivided one-half interest in the land as tenant in common under the deed to “ C. J. Bolen and- children, ’ ’ and praying for an accounting for rents and profits, and for partition. To this billappellees demurred on the ground that the bill showed on its face that C. J. Bolen took the entire title to the land under the deed to ‘£ C. J. Bolen and children. ’ ’ This demurrer was overruled, and answer filed, and testimony taken to throw light on the intent and purpose of Brantley Bolen, the grantor, on which the court below dismissed Mrs. Tyer’s bill “on bill, answer, exhibits, and proofs, ’ ’ and Mrs. Tyer appeals.

The briefs of counsel are quite able, and say all that may be said on either side, and have greatly aided the court in its investigation of the question involved in this litigation.

• The intent of the grantor is to be ascertained from an examination of the entire instrument. This document was manifestly prepared by merely filling in the blank spaces in a printed form of a deed. The filling in is characterized by the appearance of haste and carelessness and inattention. It makes the grantor say that, “he,” not “I,” “do grant,” etc., and “do agree,” etc.; and the words “theirs heirs” are three times used in the writing. The question is, must the possessive pronoun, “his,” be compulsorily referred to C. J. Bolen, or should it properly be referred, according to the actual intent, gathered from the whole paper, to the “parties of the second part,” as a class. It is not shown on the face of it whether the grantees are male or female, — whether it is to father or mother and son or daughter. If Beulah, the daughter, had been a son, and C. J. Bolen the mother, would “ his ” be wholly referred to the son ? If both grantees were males, to which one would ‘‘ his ” be referred ? If both were females, would ‘£ his ” render the whole conveyance nugatory ? These questions would all be promptly answered in the negative, and they illustrate the importance of a common sense view of the whole instrument, to see what the purpose was. In its collocation with the immediate context, the word “ his,” if it is referred alone to C. J. Bolen, seems absolutely nonsensical and preposterous. The ‘c indenture ’ ’ is recited to be 4 ‘ between Brantley Bolen, party of the first part, and C. J. Bolen and children, parties of the second part.” It then recites, “in consideration of |500 paid the said party of the second part,” and then proceeds to say that the grantor “do grant,” etc., “to the party of the second part his heirs and assigns.” But if we look for light on the meaning to the luibendum and the covenanting clauses, it becomes manifest that the word “his” referred to both the grantees. The habendmm is ‘ unto the said party of the second part, and unto theirs heirs and assigns, ’ ’ that the grantor will warrant, etc., ‘: unto the said party of the second part and .unto theirs heirs, ’ ’ etc. Upon the whole instrument it is plain that “his” is absurd, foolish, and unmeaning, unless applied to the parties of the second part; and we, without hesitation, so apply it. ■ This view harmonizes the whole instrument, and takes it out from under the operation of the wholesome rule that, where the granting clause is plain, it governs, though the habendMm clause be in conflict. Here the granting clause becomes clear only by a survey of the whole instrument.

We are content with the authorities cited in the briefs of counsel for support of this opinion.

Reversed and remanded for accounting.  