Hammond v. Hammond

Urner, J., delivered the opinion of the Court. An owner in fee simple of certain real estate in Baltimore conveyed it to one who immediately reconveyed it to the first grantor by a deed purporting in the granting clause to transfer a fee simple title, hut containing an habendum clause,, which defined the regranted estate as being vested in the grantee for his life only, with power of disposition by sale,, lease, or mortgage, and with remainder to three of his children, as joint tenants, if the reserved powers were not exercised. Subsequently the original owner, and grantor in the first deed, executed a will bequeathing in trust a pecuniary legacy, for the payment of which his personal estate, at the time of his death, six years later, was insufficient. The trustee under the will, invoking the rule that an habendum repugnant to the granting clause in a deed is inoperative, has advanced the theory that the reconveyance to the first grantor effected no change in the fee simple title with which he was. previously invested, and that, not having disposed of the-property in his lifetime, it passed as his absolute estate under the residuary clause of his will, subject to the charge of the-pecuniary legacy to the extent of the deficiency resulting-from the inadequacy of his remaining estate.

The decree below adopted and applied that theory, and those who -would be-entitled in remainder under the habendum clause of the'second deed have appealed. The record discloses independent circumstances tending to-confirm the purpose- which the habendum clause in question indicates. But the fact that its provisions represent the sole object for which the two deeds were executed and recorded is ⁵⁶⁵ perfectly clear from the method of conveyance and re-transfer thus employed. Unless the habendum is given effect, the execution of the deeds was wholly futile.

It was obviously intended that they should accomplish a change of title. If thehabendum should be ignored as technically repugnant to the-granting clause in the second deed, the title would be in precisely the same tenure as though neither of the deeds had been executed. Therefore, to hold the habendum nugatory would be to defeat the manifest design of the two formal conveyances. Ordinarily, the rule which prefers the granting clause to-an inconsistent habendum is applied when a deed must be construed with exclusive reference to its own terms.

It is-the purpose of the rule to