
    McLEOD v. TARRANT.
    1. Deeds — Habendum.—Where a deed, in its premises, grants land to A, habendum to A and B, their heirs and assigns forever, followed by a general warranty to A and B, their heirs and assigns, the intention to grant the estate to A and B is manifested, and the courts will effectuate such intention.
    2. Estates by Entirety — Circuit Decree. — And A and B being husband and wife, they took as tenants by entireties, and the land vested in fee in the surviving wife on the death of the husband. The Circuit Judge erred in failing so to decide.
    Mr. Justice McGowan concurred in the result and Mr. Chief Justice
    McIver dissented.
    Before Hudson, J., Greenville, April, 1892.
    This was an action for partition by the heirs at law of A. B. McGilvary, who died in 1863, against the devisees of Nancy McGilvary, who died in 1891. The Circuit decree was as follows:
    This cause came to trial before me upon exceptions to the master’s report. The facts are as follows: Stephen Holloway, late of the county and State aforesaid, departed this life in 1844, leaving a will by which he devised the land, sought in this action to be partitioned, to his wife, Nancy Holloway, for life; remainder, one-half in fee to said wife, and the other one-half to his daughter, Mary Mariah; in the event that the said Mary Mariah should die, leaving no bodily heirs, then over to testator’s surviving child or children; but in the event there should be none such, then over to Stephen H. Wood. Testator left surviving him his widow and the said only child, the latter dying in 1849, unmarried. There being thus no bodily heirs of her, or other surviving children of testator, the said Stephen H. Wood became entitled to the one-half devised to the said Mary Mariah.
    In the winter of 1849, the widow, Nancy Holloway, intermarried with one A. B. McGilvary. Subsequently, in 1850, Stephen H. Wood conveyed by deed his interest in the land referred to to the said A. B. McGilvary. The point at issue in this case is the construction of that deed. The original deed is in evidence before me. By the premises thereof the grant is to A. B. Mc-Gilvary, and the consideration, is stated to be “one hundred dollars, paid by A. B. McGilvary.” The habendum and the warranty clauses of the deed are peculiar, however, and are in these words: “To have and to hold, all and singular the premises before mentioned unto the said A. B. McGilvary and Nancy McGilvary (late Nancy Holloway), their heirs and assigns forever. And I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said A. B. McGilvary and Nancy McGilvary (late Nancy Holloway), their heii’s and assigns, against me and my heirs and against any person whomsoever lawfully claiming the same or any part thereof.” The said Nancy McGilvary died in June, 1891, leaving a will, wherein she devised all her interest in the land referred to to the defendant.
    It is claimed by the defendant that the said deed created an estate by entirety, and that, the wife having survived, the whole estate became vested in her. In that event, the plaintiffs, as heirs at law of A. B. McGilvary, who became deceased as far back as 1865, would have no interest in this land. Such were the conclusions of the master, but I cannot concur therein. I agree with the master that there is no repugnancy between the premises and the habendum of the deed such as to render void the habendum. The effect of the habendum, however, would be to vest the fee in A. B. McGilvary. In so far only as that clause would give any estate to Nancy McGilvary, is it invalid? See Mart. Conv., 92; 3 Wash. Real Prop., 468; 3 Cruise Real Prop.,432, and cases therein cited. I, therefore, must reverse the master in his conclusion that there was an estate by entirety, and must sustain the plaintiffs’ exceptions upon this point. The fact that it appears, from the evidence taken before the master, that the purchase money for this land was probably procured by A. B. McGilvary from the sale of certain personalty belonging to his wife, cannot, in my opinion, affect the construction I have given to this deed. This act on the part of the husband would be only a reduction to possession of his wife’s personalty, and I find, as a matter of fact, that it was such. The defendant must also account for the rent and profits of this tract, since he has been in possession of the same, subsequent to the death of Nancy McGilvary. * * * The master’s repoi't is, therefore, reversed to the extent rendered necessary by this decree; otherwise confirmed. It is ordered, that a writ of partition be issued, &c.
    
      Messrs. Cothran, Wells, Ansel & Cothran, for appellants.
    
      Messrs. Benet, McCullough & Parker, contra.
    May 23, 1893.
   The opinion of the court was delivered by

Mr. Justice Pore.

There are only two questions raised by this appeal. First: Whether the habendum in a deed, whereby an estate in land is provided for a man and his wife and their heirs and assigns, can be so construed to enlarge the premises in such deed, wherein the husband alone is granted an estate in such land, as that the estate in such land is vested in both husband and wife. Second: If so, and the wife survive the husband, whether she becomes seized of such land as an estate in entirety. The Circuit Judge, by his decree, answered the first question in the negative, thus rendering it unnecessary, in his judgment, to answer the second question.

We are not satisfied with that conclusion for the following reasons: The technical meaning of the premises in a deed is that part of the deed that sets forth the number and names of the parties; recitals necessary to explain the transaction, the consideration; and the certainty of the grantor, grantee, and thing granted. 2 Bl. Com., 241. This is the object of the premises. In the case at bar, the premises provide an estate for life to the husband (Varn v. Varn, 32 S. C., 77), the reason being that no words of inheritance are coupled with the estate vested in the grantee thereby. However, in the case at bar, in the habendum of the deed, the grantor uses words of inheritance whereby the estate for life, set out in the premises, is enlarged to an estate in fee in the husband. Why is this allowed? Is it not because the intention of the grantor is thus made clear to vest an estate in fee rather than a life estate? Thus the cardinal principle governing the construction of deeds is made to appear, viz: that the intention of the grantor, if consistent with law, must govern. This principle is recognized and enforced by this court. Chancellor v. Windham, 1 Rich., 161; McCown v. King, 26 S. C., 233; Mellichamp v. Mellichamp, 28 S. C., 125; Fuller v. Missroon, 35 S. C., 314.

But, it may be said, granted that the estate in land of the grantee in the premises of a deed may be enlarged by the habendum, it does not follow that a person named for the first time in the habendum, and not so named in the premises, can be admitted to be a grantee under such deed. Why should this be so? If no name at all appears in the premises as the grantee, but such name first appears in the habendum, the courts effectuate the intention of the grantor by making the grantee named in the habendum the true grantee under the deed. 3 Wash. R. P., 319; Perry v. Bellinger, 44 Maine, 416. All these matters are governed by the ascertainment of the intention of the grantor. This court, in the case of Kibler v. Luther, 18 S. C., 606, held, in effect, that when the concluding parts of a warranty in a deed for land imposed a duty, or a condition, for the first time expressed in the whole deed, it wms incumbent upon the court to give effect to such stipulations by the grantor. Why? Because thereby the grantor evinced his intention for his conveyance to so operate. “The office of the habendum in a deed is properly to determine what estate or interest is granted by the deed.” 2 Blackstone, 241. Applying these well established and-just principles to the case at bar, and we fail to see why the intention of the grantor that the wife should be a grantee, along with the husband, of the estate in fee he had conveyed by his deed, should not be enforced. How else can the words of this deed in the habendum — “To have and to hold all and singular the said premises before mentioned unto the said A. B. McGilvary and Nancy McGilvary (late Nancy Holloway), their heirs and assigns forever. And I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said A. B. McGilvary and Nancy McGilvary (late Nancy Holloway), their heirs and assigns,” &c. — be construed.

[filed June 5, 1893].

The second question has been already decided by our courts. In a deed whereby lands are conveyed to husband and wife and their heirs and assigns forever, the survivor of such husband and wife is seized of such in entirety. Bomar v. Mullins, 4 Rich. Eq., 80; also, Georgia, &c., Railway Company v. Scott, by Judge McGowan, 38 S. C., 34. It follows, therefore, that the Circuit Judge, as before remarked, was in error in his decision of the first question, and was also in error in refusing to decide the second question in the affirmative.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the complaint be dismissed.

Mr. Justice McGowan,

concurring in result. It is very manifest that the deed of Stephen H. Wood, of January 3,1850, was inartificially drawn, but whether we look at the property intended to be conveyed, the relation of the parties, or the terms of the paper itself, construing all of its provisions together, it seems to me there can be no doubt that the grantor meant to convey his interest in the land in question to A. B. McGilvary and his wife Nancy, not for life, but in fee. Indeed, the master found as a fact, that it was the intention of the parties that the conveyance should be made “to A. B. McGilvary and Nancy McGilvary, his wife, their heirs and assigns forever.” I do not think that the habendum is so wholly inconsistent with or repugnant to the premises as to make the habendum void, and, therefore, I concur in the conclusion reached by Mr. Justice Pope.

Mr. Chiee Justice McIver,

dissenting

As I cannot concur in the conclusion reached by the majority of this court, I propose to state very briefly the reasons for my dissent. The main question in the case is whether Mrs. McGilvary, who is not named in the premises of the deed which we are called upon to construe, as grantee, but whose name first appears in the habendum clause of said deed, took any estate whatever in the premises conveyed. It seems to me that it would be very unsafe for courts to infer an intention on the part of the grantor in this case to convey an estate to Mrs. MeGilvary, from the simple fact that her name appears in the habendum clause, for that is really the only circumstance which can be'relied on to support such au inference, unless, contrary to the well settled rule, we should go outside of the terms of the deed to ascertain its true intent. It seems to me that the authorities show clearly that such an inference is not permissible.

In Windsmore v. Hobart, Hob. Rep., 313, b and c, the syllabus of the case is as follows: “Lands were demised by indenture to T. H., habendum to the said T. H. and three other persons successively; held that no one could take immediately but T. H., because he was the only party to the deed; and that the others could not take by way of joint remainder ou account of the word successively, nor in succession on account of the uncertainty who should take first and who should follow.” In a note to this case, doubtless the work of Mr. Justice Williams, the editor of the first American edition, I find that, in speaking of the office of a habendum in a deed, he uses this language: “Its general office is to limit the certainty of the estate granted. Therefore, no person can take an immediate estate by the habendum of a deed, where he is not named in the premises; for it is by the premises that the thing is really granted. A stranger to the deed may take by way of remainder, but he cannot take any present estate in possession. Co. Litt., 231 a. If no name whatever be mentioned in the premises, then a person named in the habendum may take a present estate; but if the thing granted be only in the habendum and not in “the premises, the deed will not pass it. Shep. Touch., 75. A use may be declared in the habendum to a person to whom no estate is granted in the premises. 13 Co., 54, Sammes’ Case; 3 East, 115, Spyve v. Topham.”

Brooks v. Brooks, Cro. Jac., 434. The syllabus is as follows: “If a copyholder surrender his estate generally, without saying to whose use it is made, and the lord regrant it to the surrenderer, habendum to him and his wife in tail, the wife shall take, though not named in the premises.” The reason given by the court for this decision, in the body of the case, which is very brief, is thus stated: “for the intent of the lord appears that both should take; and there is no more granted to the husband than the wife, for there are not any words of grant to the husband but cepit de domino, cui dominus concessit seisuian, but all the words of grant and limitation are in the habendum; and in many manors there are no other forms of grant or limitation.” Note: The report does not show the terms of the conveyance further than as above stated, and it would seem that the decision really rests upon either of the two apparant exceptions to the general rule mentioned in the note to Winds-more v. Hobart, above quoted: 1st. That where no person is named in the premises, the persons named in the habendum may take, or 2d. That a use may be declared to the wife, who is only named in the habendum.

Greenwood v. Tyber, Cro. Jac., 564, was a case in which the third and principal point, as it is said in the report of the case, was in regard to the indenture made between Long and wife, of the first part, and Fisher, of the second part, whereby the demise was to Fisher and wife and to Joan, their daughter, ut svpradictum est, the wife and daughter not being parties to the indenture; and the question was whether it was a good lease to the wife and daughter, by way of remainder, the one after the other or not, “for otherwise as joint tenants it was agreed clearly by all, that they did not take, not being parties to the indenture;” and it was held by the Court of King’s Bench that the wife and daughter should take by way of remainder, the one after the other. That court undertook to draw a distinction between this case and that of Windsmore v. Hobart, supra (erroneously cited as Windsmore v. Hubbard). But when a writ of error was brought before the Justices and Barons of the Exchequer, they seemed to doubt, especially on the third point, the reason of the doubt being whether the two cases could stand together, and, therefore, recommended a compromise, which was adopted. Note: this case is cited simply for the purpose of showing that it was agreed by all that the wife and daughter could not take except by way of remainder, for the case is really without authority, owing to the unsettled doubt expressed by the exchequer, at the hearing of the writ of error.

In Hafner v. Irwin, 4 Dev. & Bat., 433, it was held that where the whole interest in property is conveyed to one person in the premises of the deed, but in the habendum is limited to another, the latter is repugnant to the former and void, and the property is vested in the grantee named in the premises, who may consequently maintain an action for it in his own name. The foregoing is a copy of the syllabus, but the case shows that the deed was to Hafner, his heirs, executors, &c., the property being all personal, and the habendum, being in these words: “To have and to hold unto the said M. W. Curry, his heirs and assigns forever, in trust,” &c., and the question was whether the plaintiff could maintain the action in his own name. In delivering the opinion of the court, Judge Daniel uses these words: “All the parts of a deed which precede the habendum, taken together, are called the premises, of which it is said, the office is rightly to name the grantor and grantee, and to comprehend the certainty of the thing granted. But though the grantee should first be named in the habendum, the grant to him will yet be good, provided there was not another grantee named in the premises. Co. Lift., 26 b, note, or if there were, provided the estate given by the habendum to the new grantee was not immediate, but by way of remainder.” Note: This case is not in point for the reason that the habendum, naming Curry as grantee, was clearly repugnant, and, therefore, void, as another person, Irwin, was named in the premises, but the case is cited merely for the language, which I have italicized, used in the opinion of the court.

The case of Blair v. Osborne, 84 N. C., 417, is directly in point, where the syllabus is as follows: “The habendum in a deed shall never introduce one who is a stranger to the premises, to take as grantee, but he may take by way of remainder. Therefore, a deed which, in the premises, gives a life estate to the mother grantee alone, and in the habendum to her and her children, operates to convey an estate for life to the mother, and an estate for life, in joint tenancy, in remainder to her children.” An examination of this case will show that the deed there construed, like the deed in McLeod v. Tarrant, did not convey an estate for life to the mother in express terms, but such an estate was implied by the absence of words of inheritance. In the opinion, Ashe, J., uses this language: “The doctrinéis laid down iu Shep. Touch., 151, that ‘one who is not named in the premises may nevertheless take an estate in remainder by limitation in the habendum.’ Rolle Abr., 68 Hob., 313. In 3 Leon Cas., 60, it is said that the habendum shall never introduce one who is a stranger to the premises to take as grantee, but he may take by way of remainder.”

One of the points decided in Berry v. Billings, 69 Am. Dec., 107 (44 Me., 416), is, that where no particular estate is mentioned in the premises, the quantity of the estate may be ascertained from the habendum. To same effect see Mart. on Conv., 92, where it is said: “But where no estate is mentioned in the granting clause, then the habendum becomes efficient to declare the intention, and it will rebut any implication which would otherwise arise from the omission in this respect in the preceding clause.” In the same work, at pages 91, 92, I find the following words: “A person may take under the habendum who is not named as a grantee in the granting part of the deed, provided there is no repugnance between these two clauses. But when the grant is to one person, the habendum cannot be to him and another person to take as joint tenants or tenants in common, for in such case the habendum is at variance with the grant. However, a person not being a grantee may be named to take by way of remainder.”

To same effect see 3 Washb. Real Prop., page 466, of the 5th edit., where it is said: “Where the grant is indefinite from its generality iu respect to the estate in the lands conveyed which it is intended to create in the grantee, the habendum serves to define, qualify or control it. Thus a lease of land to one, habendum to him and his heirs, conveys a fee.” And at page 468, the same author says: “If, however, the person who is to take is not named in the grant, he may be ascertained if named in the habendum, since there is no repugnancy between the two, and the grant alone takes effect. A stranger to the deed may take by way of remainder, though not named in the premises; but otherwise one shall not take a present interest jointly with another unless named in the premises.”

From these authorities the following inferences may be drawn: 1st. That, where one person is named in the premises as the grantee, and he and another are both mentioned in the habendum, such other person cannot take an immediate interest., because not named in the premises, though he may take by way of remainder, or a use may be declared in his favor, provided the language of the habendum, can be given such effect without violating any of the rules of law. 2d. That where no person is named in the premises as grantee, then resort may be had to the habendum to ascertain who the grantor intended to take. 3d. That where there are no words of inheritance in the premises, in which case the grantee would take only a life estate by implication, then resort may be had to the terms of the habendum to ascertain the quantity of the estate intended to be conveyed, and those terms may, if sufficient, rebut such implication.

Applying these principles to the case in hand, it would seem that Mrs. McGilvary could take no estate whatever under the deed in question. She is not named as grantee in the premises, and A. B. McGilvary is' there named, and hence resort cannot be had to the habendum to ascertain the grantee. If she could take at all it would be by way. of remainder, or as eestui que use. She cannot take by way of remainder, because a remainder cannot be created by deed where the estate of the first, taker is a fee. And as the estate granted by the premises to A. B. McGilvary must be enlarged into a fee by the express terms of the habendum, it follows that there can be no remainder. Neither can she take as cestui que use, for there is no language in the deed, either in the premises or the habendum, declaring any use.

I, therefore, concur with the Circuit Judge in his construction of the deed, and I also agree with him in the view which he has taken of the second question, for the reason which he has given. It seems to me, therefore, that the judgment of the Circuit Court should be affirmed.

Judgment reversed.

J. B. Davis, for appellant. Bellinger, solicitor, contra.  